Appeal
from Jefferson Circuit Court (CC-16-3124; CC-16-3125;
CC-16-3126; CC-16-3127).
PER
CURIAM.
Walter
McGowan appeals from an order revoking his split sentences.
On December 18, 2017, McGowan pleaded guilty to first-degree
burglary, a violation of § 13A-7-5, Ala. Code 1975,
first-degree robbery, a violation of § 13A-8-41, Ala.
Code 1975, second-degree assault, a violation of §
13A-6-21, Ala. Code 1975, obstruction of justice, a violation
of § 13A-8-194, Ala. Code 1975, and third-degree escape,
a violation of § 13A-10-33, Ala. Code
1975.[1] For each conviction, the Jefferson Circuit
Court sentenced McGowan, who is a habitual felony offender,
pursuant to the voluntary-sentencing guidelines to 15 years
in prison; those sentences, however, were split, and McGowan
was sentenced to serve 5 years in prison, followed by 2 years
on probation. The sentences were ordered to run concurrently.
On February 23, 2018, a motion to revoke McGowan's split
sentences was filed. Following a hearing, the circuit court
revoked McGowan's split sentences, and McGowan now
appeals.
On
appeal, McGowan argues, as he did at the revocation hearing,
that his sentences are illegal. He further contends that the
circuit court's order revoking his allegedly illegal
split sentences must be vacated. Specifically, McGowan argues
that the circuit court did not have authority under §
15-18-8(a), Ala. Code 1975, a part of the Split-Sentence Act,
to split his 15-year sentences to any period of confinement
over 3 years.
At the
time of McGowan's offenses in 2016, [2] § 15-18-8,
Ala. Code 1975, the Split-Sentence Act, provided, in relevant
part:
"(a) When a defendant is convicted of an offense, other
than a sex offense involving a child as defined in Section
15-20A-4(26), [Ala. Code 1975, ] which constitutes a Class A
or B felony and receives a sentence of 20 years or less in
any court having jurisdiction to try offenses against the
State of Alabama and the judge presiding over the case is
satisfied that the ends of justice and the best interests of
the public as well as the defendant will be served thereby,
he or she may order:
"(1) That a defendant convicted of a Class A or Class B
felony be confined in a prison, jail-type institution, or
treatment institution for a period not exceeding three
years in cases where the imposed sentence is not more than 15
years, and that the execution of the remainder of the
sentence be suspended notwithstanding any provision of the
law to the contrary and that the defendant be placed on
probation for such period and upon such terms as the court
deems best.
"(b) Unless a defendant is sentenced to probation, drug
court, or a pretrial diversion program, when a defendant is
convicted of an offense that constitutes a Class C or D
felony offense and receives a sentence of not more than 15
years, the judge presiding over the case shall order that the
convicted defendant be confined in a prison, jail-type
institution, treatment institution, or community corrections
program for a Class C felony offense ... for a period not
exceeding two years in cases where the imposed sentence is
not more than 15 years, and that the execution of the
remainder of the sentence be suspended notwithstanding any
provision of the law to the contrary and that the defendant
be placed on probation for a period not exceeding three years
and upon such terms as the court deems best."
(Emphasis added.)
The
circuit court imposed 5-year periods of confinement on
sentences that did not exceed 15 years in prison. As McGowan
correctly argues, his sentences for burglary and robbery,
which were Class A or B felonies, are illegal because the
sentences exceed the three-year maximum period of confinement
under the applicable version of § 15-18-8(a)(1). This
Court also notes that McGowan had three Class C felony
convictions __ second-degree assault, obstruction of justice,
and third-degree escape. Under the applicable version of
§ 15-18-8(b), the maximum period of confinement McGowan
could receive for those convictions, where the sentence
imposed is not more than 15 years, is 2 years.
In
support of his claim that the revocation order must be
vacated, McGowan cites to this Court's decision in
Enfinger v. State, 123 So.3d 535
(Ala.Crim.App.2012). In Enfinger, this Court
addressed the effect of probation revocation following the
imposition of an illegal sentence.
"In Enfinger, Enfinger pleaded guilty to sexual
abuse of a child under 12, see § 13A-12-69.1, Ala. Code
1975, and his sentence was split; Enfinger's probation
was eventually revoked, and he appealed. On appeal, this
Court first recognized that, because of the nature of
Enfinger's offense __ 'a criminal sex offense
involving a child' __ 'the circuit court did not have
the authority to either impose a split sentence or to impose
a term of probation.' Enfinger, 123 So.3d at
537. Therefore, this Court concluded that the circuit
court's purported probation-revocation order was
unauthorized because the circuit court 'had no authority
to conduct a probation-revocation hearing and revoke
Enfinger's probation.' Enfinger, 123 So.3d
at 538."
Scott v. State, 148 So.3d 458, 462-63
(Ala.Crim.App.2013).
In
Enfinger, Scott, and the cases that flowed
therefrom, this Court has held that if the split portion of a
defendant's sentence was unauthorized, then the circuit
court was likewise unauthorized to revoke the defendant's
probation or split sentence. See Hicks v. State, 138
So.3d 338 (Ala.Crim.App.2013); Pardue v. State, 160
So.3d 363 (Ala.Crim.App.2013); Brown v. State, 142
So.3d 1269 (Ala.Crim.App.2013); Adams v. State, 141
So.3d 510 (Ala.Crim.App.2013); Holley v. State, 212
So.3d 967 (Ala.Crim.App.2014); Mewborn v. State, 170
So.3d 709 (Ala.Crim.App.2014); McNair v. State, 164
So.3d 1179 (Ala.Crim.App.2014); and Belote v. State,
185 So.3d 1154 (Ala.Crim.App.2015). Nonetheless, the State
contends that, even if the split portions of McGowan's
initial sentences were unauthorized, this issue is moot
because McGowan is no longer serving a split sentence.
The
periods of confinement imposed on McGowan's sentences
were not authorized by § 15-18-8. Enfinger, if
followed, would dictate that this Court hold that the circuit
court did not have the authority to revoke McGowan's
split sentences and that this Court remand the case back to
the circuit court so that McGowan could be resentenced.
However, upon reexamining Enfinger, this Court now
believes that the decision in Enfinger was an
unnecessary departure from this Court's previous position
that the removal of the illegal manner of execution of a
sentence renders the illegality moot. See Kenney v.
State, 949 So.2d 192, 193 n.1 (Ala.Crim.App.2006)
(recognizing that the circuit court's imposition of an
illegal probationary period was rendered moot when the
defendant's probation was revoked); Williams v.
State, 535 So.2d 197, 198 (Ala.Crim.App.1988)
("[A]ny question pertaining to appellant's sentence
is now moot, since appellant's probation term has been
terminated.").
In her
dissent in Enfinger, Presiding Judge Windom
disagreed with the majority's holding that, because it
did not have the authority to split Enfinger's sentence
or to impose a term of probation, the circuit court in that
case had no authority to conduct a probation-revocation
hearing or to revoke Enfinger's probation. Presiding
Judge Windom stated:
"[T]his Court has 'held that when the circuit court
does not have the authority to split a sentence under the
Split-Sentence Act, § 15-18-8, Ala. Code 1975, "the
manner in which the [circuit] court split the sentence is
illegal[, ]" Austin v. State, 864 So.2d 1115,
1118 (Ala.Crim.App.2003), and ... "[m]atters concerning
unauthorized sentences are jurisdictional." Hunt v.
State, 659 So.2d 998, 999 (Ala.Crim.App.1994).' 123
So.3d at 537. Further, it is well settled that a court can
and should correct a jurisdictional error at any time.
See Ex parte Peterson, 884 So.2d 924, 926
(Ala.Crim.App.2003) ('A court can notice a jurisdictional
defect at any time and has a duty to correct the
defect.'). Here, the circuit court corrected a
jurisdictional defect __ it ...