Appeal from Coffee Circuit Court. (CC-93-340). Gary McAliley, TRIAL JUDGE.
As Amended. Rule 39(k) Motion Denied March 3, 1995. Rehearing Denied March 3, 1995. S.C. Granted Cert. October 20, 1995. Remand from the S.C. December 29, 1995. Released for Publication August 16, 1996.
Patterson And McMILLAN, JJ., Concur; Bowen, P.j., Dissents With Opinion; And Montiel, J., Joins IN The Dissent.
The opinion of the court was delivered by: Taylor
The appellant, Teresa Pierson, alias Teresa Williams, was convicted of the unlawful distribution of cocaine in violation of § 13A-12-211, Code of Alabama 1975. She was sentenced to 12 years' imprisonment.
The state's evidence tended to show that on July 15, 1993, an undercover police officer gave the appellant $20, and in return, the appellant gave the officer a rock of crack cocaine.
The appellant's 12-year sentence included enhancements pursuant to §§ 13A-12-250 and -270, Code of Alabama 1975. Sections 13A-12-250 and -270 provide that five years will be added on to a sentence when a defendant is "convicted of an unlawful sale of a controlled substance" within three miles of a school or within three miles of a housing project.
The appellant argues that her sentence was enhanced incorrectly because, she contends, she did not sell the cocaine to the undercover officer but was merely acting as the agent of a drug dealer in the transaction. The appellant bases her argument on Ex parte Mutrie, [Ms. 1920902, September 10, 1993] So. 2d (Ala. 1993), in which the Alabama Supreme Court held that Mutrie's sentence for her guilty plea conviction for the unlawful "delivery" of a controlled substance could not be enhanced by the application of §§ 13A-12-250 and -270.
In Ex parte Mutrie, the Supreme Court of Alabama stated:
"Because prior caselaw has established that a defendant who acts as the buyer's agent (also known as a 'procuring agent') is not guilty of unlawfully 'selling' a controlled substance, and because the clear language of §§ 13A-12-250 and -270 applies only to convictions for unlawful 'sale,' a conviction for unlawful distribution is enhanceable only if the defendant's activity constituted a sale, and not if the defendant acted as the agent of the buyer.
"Therefore, we hold that §§ 13A-12-250 and -270, prescribing a five-year enhancement of sentences for persons convicted of an unlawful sale of a controlled substance within three miles of a school and within three miles of a housing project, do not apply to convictions for 'distribution' of a controlled substance, in violation of § 13A-12-211, unless the defendant is found to have sold, or to have collaborated or associated with the seller to sell, a controlled substance."
The exception carved out in Mutrie applies only to someone who acts as an agent for the buyer. An agent for the seller does not ...