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Clark v. State

Alabama Court of Criminal Appeals

October 3, 2014

Freddie L. Clark
v.
State of Alabama

Released for Publication June 10, 2015.

Appeal from Russell Circuit Court. (CC-12-463). Albert L. Johnson, Trial Judge.

For Appellant: Eric Barbee Funderburk, Phenix City.

For Appellee: Luther Strange, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen.

Windom, P.J., and Welch, Kellum, Burke, and Joiner, JJ., concur.

OPINION

PER CURIAM.

The appellant, Freddie L. Clark, was convicted of one count of unlawful distribution of a controlled substance, a violation of § 13A-12-211, Ala. Code 1975. The circuit court sentenced Clark as a habitual felony offender with three prior felony convictions to a total of 30 years' imprisonment: 20 years' imprisonment for the unlawful-distribution conviction plus a 5-year enhancement pursuant to § 13A-12-250, Ala. Code 1975, because the offense took place within a 3-mile radius of a school, and a 5-year enhancement pursuant to § 13A-12-270, Ala. Code 1975, because the offense took place within a 3-mile radius of a public-housing project. The circuit court ordered Clark to pay a $5,000 fine, $50 to the Crime Victims Compensation Fund, a fine of $1,000 pursuant to the Drug Demand Reduction Assessment Act, $100 to the Alabama Forensic Services Trust Fund, and court costs.

The record indicates that in December 2011 Clark sold an " eight ball" of crack cocaine[1] to a confidential informant who

Page 148

was working for the police. Clark was subsequently arrested and charged with unlawful distribution of a controlled substance. On September 9, 2013, Clark was convicted of unlawful distribution of a controlled substance and on October 11, 2013, the circuit court conducted a sentencing hearing. The following transpired at the sentencing hearing:

" THE COURT: Freddie Clark. Distribution of a controlled substance; is that correct? And that is a Class B felony?
" [DEFENSE COUNSEL]: Your Honor, yes, sir. If I may, Mr. Clark was convicted of distribution of a controlled substance, and the jury came back with a finding of that related statute within the three miles of a housing project and three miles of a school. The State filed a motion or notice of prior convictions for introducing them at sentencing and to provide to the Court the certified priors.
" THE COURT: All right.
" ....
" [DEFENSE COUNSEL]: -- the charge is now subject to the presumptive guideline, and I reviewed the full commission report, and in there it states that the presumptive sentencing guideline is to apply to anyone sentenced after October 1st. We ask that the presumptive sentencing guideline apply. I have attempted today to do the worksheet. I have done the worksheet that would show what the presumptive sentencing range would be.
" [PROSECUTOR]: The State's position would be that the statute says it becomes effective October 1st. It doesn't mean they apply to previous convictions prior to October 1st. The State would ask the Court to sentence him under the old guideline and also implement the two enhancements I have discussed with the Court previously.
" THE COURT: You know, this is an interesting question that I don't think anybody has given an answer to yet. And by analogy I look at it this, this way, suppose that a new statute had been passed increasing the penalty, and he is tried for an offense and the new statute takes effect and ...

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