Opinion
CR 89-786.
October 26, 1990. Rehearing Denied December 28, 1990.
Appeal from the Circuit Court, Baldwin County, No. CC-88-585, James H. Reid, J.
James W. May, Gulf Shores, for appellant.
Don Siegelman, Atty. Gen., and Andy S. Poole, Asst. Atty. Gen., for appellee.
M.A.T. pleaded guilty to the offense of assault in the third degree and was treated as a youthful offender. His sentence of three years' imprisonment was "split" with a period of imprisonment of 180 days, successful completion of prison "boot camp," and five years' supervised probation. He raises two issues on this appeal from that conviction.
Rule 52, A.R.App.P., provides that "[i]n any case involving . . . a person granted youthful offender status, . . . the appellate court shall make reasonable efforts to preserve the anonymity of such a person."
Ala. Code § 15-18-8(a)(1) (Supp. 1990).
Ala. Code § 15-18-8(a)(2) (Supp. 1990).
I.
The sentence imposed on the defendant exceeded the jurisdiction of the trial court. The defendant was "convicted" of assault in the third degree under Ala. Code 1975, § 13A-6-22. This offense is a Class A misdemeanor punishable by "imprisonment in the county jail or to hard labor for the county" for "not more than one year." § 13A-5-7(a)(1). The maximum period of probation for a misdemeanor is two years. § 15-22-54(a). These provisions are applicable to a person adjudged a youthful offender. See § 15-19-6(d). This error is candidly admitted by the Attorney General. Furthermore, we find no statute authorizing a trial court to sentence a youthful offender adjudged guilty of a misdemeanor to "boot camp" under the Department of Corrections.
Therefore, this cause is remanded to the trial court with directions that within 30 days of the date of this opinion, the original sentence be set aside and the defendant sentenced within the authorized range of punishment allowed by law.
II.
The defendant argues that Ala. Code 1975, § 15-12-25, is unconstitutional because it permits the trial court to condition probation upon reimbursement by an indigent defendant of the fees and expenses of appointed counsel and permits the incarceration of an indigent defendant for a failure to reimburse. This issue is moot because the defendant's sentence has been set aside in Part I of this opinion. Furthermore, this issue was not presented to the trial court and has not been properly preserved for appellate review.
REMANDED WITH INSTRUCTIONS.
All judges concur.
ON APPLICATION FOR REHEARING
On original submission, this Court held that the defendant's sentence (as a youthful offender) to three years' imprisonment for the misdemeanor of assault in the third degree was unauthorized. On rehearing, the Attorney General agrees with that holding.
However, the Attorney General takes issue with this statement in our opinion: "Furthermore, we find no statute authorizing a trial court to sentence a youthful offender adjudged guilty of a misdemeanor to 'boot camp' under the Department of Corrections." The Attorney General argues that "no statute prevents a trial judge from ordering such a sentence and that the language of the statute itself modifies the punishment that may be given for conviction of a misdemeanor and does authorize such sentence." Appellee's application for rehearing at 2. We disagree.
Alabama Code § 15-18-8 (Supp. 1990) provides in pertinent part:
"(a) When a defendant is convicted of an offense and receives a sentence of 15 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 may order:
". . . .
"(2) That the convicted defendant may be confined, upon consultation with the commissioner of the Alabama department of corrections (hereinafter called department) in a disciplinary, rehabilitation, conservation camp program (hereinafter called program) of the department. The convicted defendant shall be received into the department in accordance with applicable department rules and regulations and may be placed in the program after completion of this initial reception. . . . Upon receipt of this report [from the commissioner as to whether or not the defendant has completed the program], the sentencing court may, upon its own order, suspend the remainder of the sentence and place the convicted defendant on probation as provided herein or, order the convicted defendant to be confined to a prison, jail-type institution or treatment institution for a period not to exceed three years and that the execution of the remainder of the sentence be suspended and the defendant be placed on probation for such period and upon such terms as the court deems best."
(Emphasis added.)
Section 13A-5-7(a) provides: "Sentences for misdemeanors shall be a definite term of imprisonment in the county jail or to hard labor for the county. . . ." Section 15-18-1(b) provides, in pertinent part: "In all cases in which the imprisonment or sentence to hard labor is 12 months or less, the party must be sentenced to imprisonment in the county jail or to hard labor for the county. No misdemeanor prisoner may be sentenced to the penitentiary." (Emphasis added.) We view this as a prohibition against the sentencing to penitentiary "boot camp" upon conviction of a misdemeanor.
The appellee's application for rehearing is overruled.
OPINION EXTENDED; APPLICATION OVERRULED.
All Judges concur.