from Mobile Circuit Court (CC-18-6664)
appellant, Lugine Capri Caver, was convicted of robbery in
the first degree, a violation of § 13A-8-41, Ala. Code
1975. The circuit court sentenced Caver as a habitual felony
offender to life in prison without the possibility of parole.
appeal, Caver raises two issues challenging his sentence.
Specifically, Caver contends that he did not receive notice
of the State's intent to proceed under the Habitual
Felony Offender Act, § 13A-5-9, Ala. Code 1975
("the HFOA"), and that he was sentenced in
violation of Rule 26.9(b)(1), Ala. R. Crim. P., because he
was not given an opportunity to allocute before his sentence
was imposed. The State rejects Caver's first contention
with regard to notice under the HFOA but concedes that Caver
was not afforded an opportunity to allocute before the
circuit court imposed the sentence.
"'This Court has previously held ... that "the
requirement that the defendant be afforded the opportunity to
speak on his or her behalf at the sentencing hearing [is an]
exception to the general preservation rule and [is]
required to afford a defendant the minimal due process."
Banks v. State, 51 So.3d 386, 392
(Ala.Crim.App.2010). Accordingly, this issue is properly
before this Court for review.
"'"Rule 26.9(b)(1), Ala. R. Crim. P., provides
that, in pronouncing the sentence, the circuit court must
'[a]fford the defendant an opportunity to make a
statement in his or her own behalf before imposing
sentence.' In Banks, 51 So.3d at 393, this Court
"'"'[R]egarding the requirement of an
allocution, Ex parte Anderson, 434 So.2d 737 (Ala.
1983), and the cases following it hold that when the lack of
an allocution or the waiver of allocution is raised on direct
appeal remand is required because a sentence without an
allocution is erroneous. See Davis v. State, 747
So.2d 921, 925 (Ala.Crim.App.1999); Newton v. State,
673 So.2d 799, 800-01 (Ala.Crim.App.1995); Burks v.
State, 600 So.2d 374, 382-83 (Ala.Crim.App.1991);
Duncan v. State, 587 So.2d 1260, 1264
(Ala.Crim.App.1991); Cline v. State, 571 So.2d 368,
372 (Ala.Crim.App.1990); Maul v. State, 531 So.2d
35, 36 (Ala.Crim.App.1988). See also Ebens v. State,
518 So.2d 1264, 1269 (Ala.Crim.App.1986); Oliver v.
State, 25 Ala.App. 34, 34, 140 So. 180, 181
(1932)(wherein the court noted that "to constitute a
valid judgement[, the fact that the defendant was asked if he
had anything to say why the sentence of law should not be
pronounced upon him] must appear in the minute entry of the
judgment"). We note that in Shaw v. State, [949
So.2d 184 (Ala.Crim.App.2006)], this Court recognized and
reiterated that on direct appeal, when the issue of the lack
of an allocution or a waiver of an allocution is raised, the
case is to be remanded. 949 So.2d at 187. Rule 26.9(b)(1)[,
Ala. R. Crim. P., ] also provides that in pronouncing the
sentence, the trial judge must "[a]fford the defendant
an opportunity to make a statement in his or her own behalf
before imposing sentence." The Committee Comments
following Rule 26 state that a defendant is entitled to
allocution, regardless of the gravity of the sentence
imposed. See Rule 26.9, Ala. R. Crim. P., Committee
"'Thompson v. State, 92 So.3d 801, 805
(Ala.Crim.App.2011).'" R.V.D. v. State, 268
So.3d 96, 101-02 (Ala.Crim.App.2018)(quoting Green v.
State, 200 So.3d 677, 678-79 (Ala.Crim.App.2015)).
Caver was not afforded the opportunity to make a statement on
his own behalf before the circuit court sentenced him, this
Court is compelled to reverse the sentencing order and to
remand this case to the circuit court for that court to
resentence Caver. On remand the circuit court shall conduct
a sentencing hearing in which a proper allocution is provided
pursuant to Rule 26.9(b)(1), Ala. R. Crim. P. The circuit
court is directed to make a return to this Court showing
compliance with these instructions within 42 days from the
date of this opinion. The return to remand shall include a
transcript of the sentencing hearing and copies of documents,
if any, relied upon by the circuit court in imposing
AS TO SENTENCE AND REMANDED WITH DIRECTIONS.
Windom, P.J., and McCool, Cole, and Minor, JJ., concur.
Because we are remanding this case for
a new sentencing hearing, the remaining issue on appeal
regarding whether the State provided proper notice of its
intent to proceed under the HFOA before ...