Appeal from Morgan Circuit Court. (CC-92-653).
Montiel, Judge. Patterson and McMillan, J.j., concur; Bowen, P.j., Dissents with opinion in which Taylor, J., joins.
The opinion of the court was delivered by: Montiel
Ronnie Tyler, the appellant, was convicted of murder in violation of § 13A-6-2, Code of Alabama 1975. He was sentenced to life imprisonment without the possibility of parole under the Habitual Felony Offender Act. This appeal followed.
The appellant claims that his sentence was improperly enhanced under the Habitual Felony Offender Act based on prior federal convictions because these convictions were not felonies under Alabama law. In 1973, the appellant pleaded guilty to 10 counts of unlawful and fraudulent interstate transportation of forged travelers' checks in violation of 18 U.S.C.A. § 2314 (1970), which provides, in pertinent part:
"Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce any traveler's check bearing a forged countersignature ... shall be fined not more than $10,000 or imprisoned not more than ten years, or both."
The eligibility of felony convictions from other jurisdictions for enhancement under the Habitual Felony Offender Act is addressed in Rule 26.6(b)(3)(iv), Ala. R. Crim. P., which reads as follows:
"Any conviction in any jurisdiction, including Alabama, shall be considered and determined to be a felony conviction if the conduct made the basis of that conviction constitutes a felony under Act 607, § 130(4), Acts of Alabama 1977, p. 812 ( § 13A-1-2(4), Alabama Criminal Code), or would have constituted a felony under that section had the conduct taken place in Alabama on or after January 1, 1980; and further, a conviction of a crime against the United States shall be considered to be a felony conviction if that crime is punishable by imprisonment in excess of one (1) year under federal law, and was so punishable at the time of its commission, even if the conduct made the basis of that conviction would not be punishable under Alabama law."
"The first question to be answered in deciding whether a federal offense constitutes a felony for purposes of the Habitual Felony Offender Act is whether there is a State counterpart for the federal crime. See generally Annot., 65 A.L.R. 3d 586 (1975); Annot., 19 A.L.R. 2d 232 (1951)." Thompson v. State, 525 So. 2d 820, 827 (Ala. 1985) (quoting Carter v. State, 420 So. 2d 292, 297 (Ala. Crim. App. 1982)). Rule 26.6(b)(3)(iv), Ala. R. Crim. P. emphasizes the "conduct made the basis of [the] conviction" rather than where or when the conviction occurred. "A conviction in any other jurisdiction, at any time, for a criminal act punishable in the other jurisdiction by a sentence exceeding one year, however, is not a 'felony conviction' unless the act 'would have been' punishable under our own criminal laws on or after January 1, 1980, by a sentence exceeding one year. Thompson v. State, 525 So. 2d at 826 (emphasis in original).
The federal indictment charged the appellant with one count under 18 U.S.C.A. § 2314 (1970) for each traveler's check. Each count was identical, except for the description of the individual checks. For example, count one reads as follows:
"That on or about the 27th day of May, 1972, at or near Huntsville, Alabama, within the Northern District of Alabama, the defendant, RONALD LEE TYLER did unlawfully and with fraudulent intent transport in interstate commerce from Huntsville, in the State of Alabama, to New York City, in the State of New York, a falsely made and forged security, to-wit, American Express Travelers Cheque No. AA 94236239 drawn on American Express Company at New York, New York, in the amount of $10.00 (Ten Dollars), payable to Herman W. Cobb as Drawer, the signature of said Drawer being falsely made, forged and fictitious, as the said defendant then and there well knew."
(C. 110-15.) The state, in its brief to this court, asserts that the counterpart Alabama statute is criminal possession of a forged instrument in the second degree, under § 13A-9-6, Code of Alabama 1975, which provides:
"A person commits the crime of criminal possession of a forged instrument in the second degree if he possesses or utters any forged instrument of a kind specified in section 13A-9-3 with ...