May 28, 1981. Certiorari to the Court of Criminal Appeals, 398 So.2d 774. FAULKNER, Justice.
"Consideration of a defendant's prior convictions in sentencing him pursuant to the Habitual Offender Act does not give the act efficacy as a constitutionally prohibited ex post facto law, even though such prior convictions occurred before the effective date of the act. Ray v. State, 398 So.2d 774, 776 (Ala.Cr.App.), cert. denied, 398 So.2d 777 (Ala. 1981), and authorities cited therein. The important consideration is that, at the time appellant contemplated committing the instant felony, he was charged by law with knowledge that if he committed the felony he would be subject to punishment under the Habitual Offender Act. Coker v. State, 396 So.2d 1094 (Ala.Cr.App. 1981).
Therefore, the mere fact that a trial judge had formerly been district attorney of a county prior to his becoming circuit judge and had prosecuted a given defendant while serving as district attorney, standing alone, would not require recusal. Ray v. State, 398 So.2d 774 (Ala.Crim.App. 1981). Similarly, where the assistant district attorney who prosecuted the appellant at trial had formerly been associated with the law firm which represented the appellant at trial did not require disqualification on the part of the assistant district attorney absent some information on his part showing prior disqualifying knowledge.
Counsel's brief also shows this. Likewise, we see no "conflict of interest" by virtue of his trial counsel representing Crawford at trial simply because he had formerly served as municipal judge. See Ray v. State, 398 So.2d 774 (Ala.Crim.App. 1981) and Terry v. State, 424 So.2d 710 (Ala.Crim.App. 1982). VI
Harrison v. State, 465 So.2d 475 (Ala.Crim.App. 1984); Tate v. State, 435 So.2d 190 (Ala.Crim.App. 1983); Douglas v. State, 406 So.2d 1051 (Ala.Crim.App.), cert. denied, 406 So.2d 1053 (Ala. 1981). If the appellant had contended that the former conviction was invalid for enhancement purposes because of lack of representation, he would have borne the burden of presenting evidence in support thereof. Tate v. State, supra; Ray v. State, 398 So.2d 774 (Ala.Crim.App.), cert. denied, 398 So.2d 777 (Ala. 1981); Napier v. State, 344 So.2d 1235 (Ala.Crim.App.), cert. denied, 344 So.2d 1239 (Ala. 1977). Appellant offered no evidence at the sentencing hearing to refute any part of the minute entry, and in fact consented to its admission.
The first issue raised on appeal is whether the trial court erred in admitting evidence, in the form of certified copies of minute entries, used to enhance appellant's punishment under the Habitual Felony Offender Statute. Alabama law is clear that such records of conviction and representation by counsel are sufficient proof of prior felonies in an habitual offender context. Gilbert v. State, 410 So.2d 473 (Ala.Cr.App. 1982); Ray v. State, 398 So.2d 774, cert. denied, 398 So.2d 777 (Ala. 1981); Thomas v. State, 395 So.2d 1105 (Ala.Cr.App. 1981). Appellant argues that these documents failed to demonstrate that he waived his constitutional rights under the Fifth Amendment when he made the prior guilty pleas.
Using similar analysis, courts have held that habitual offender statutes do not violate the clause. People v Shastal, 26 Mich. App. 347; 182 N.W.2d 638 (1970); Short v State, 443 N.E.2d 298 (Ind, 1982); Ray v State, 398 So.2d 774 (Ala Crim App, 1981); State v Pendergraft, 124 Ariz. 449; 604 P.2d 1160 (1979). Even though probation is an act of grace and not a right, Fernandez v Rivera, 70 PR 859 (1950), held that a statute taking away probation could not be applied retroactively.
At his sentencing hearing, the State introduced, without objection, certified copies of the minute entries of three of the prior convictions. See Smith v. State, 409 So.2d 455 (Ala.Cr.App. 1981); Douglas v. State, 406 So.2d 1051 (Ala.Cr.App.), cert. denied, 406 So.2d 1053 (Ala. 1981); Ray v. State, 398 So.2d 774 (Ala.Cr.App.), cert. denied, 398 So.2d 777 (Ala. 1981); Thatch v. State, 397 So.2d 246 (Ala.Cr.App.), cert. denied, 397 So.2d 253 (Ala. 1981). Appellant's assertion on appeal that his sentence of life imprisonment without parole constitutes cruel and unusual punishment has previously been answered to his detriment in Lidge v. State, [Ms. 6 Div. 580, Apr. 20, 1982], 419 So.2d 610 (Ala.Cr.App. 1982), and Holley v. State, 397 So.2d 211 (Ala.Cr.App.), cert. denied, 397 So.2d 217 (Ala. 1981).
"MR. DAVIS: Call Officer Hassen." For his contention that Judge Johnson should have recused himself and thereby caused a mistrial of the case, appellant relies chiefly, if not exclusively, upon Rushing v. City of Georgiana, Ala., 361 So.2d 11, 12 (1978), in which the Alabama Supreme Court, per Justice Beatty, held that the trial judge should have recused himself by reason of his having theretofore, before he became a judge and while he was a circuit solicitor of the same circuit, prosecuted a criminal case against Rushing, which case grew out of the same facts and controversy that gave rise to the case of Rushing, as plaintiff, v. City of Georgiana. As pointed out in Ray v. State, Ala.Cr.App., 398 So.2d 774, cert. denied, 398 So.2d 777 (1981), the turning point in Rushing v. City of Georgiana was that the then pending civil case and the previous criminal case concerned the same "matter in controversy," which should have brought about the judge's recusal, pursuant to Alabama Canons of Judicial Ethics, Canon 3, Part C. It was held in Ray v. State, at 398 So.2d 766-777, that the fact that the trial judge, before he was a judge and while he was district attorney of the particular circuit, had prosecuted the defendant in another case presented no valid ground for a motion that he recuse himself.
Consideration of a defendant's prior convictions in sentencing him pursuant to the Habitual Offender Act does not give the act efficacy as a constitutionally prohibited ex post facto law, even though such prior convictions occurred before the effective date of the act. Ray v. State, 398 So.2d 774, 776 (Ala.Cr.App.), cert. denied, 398 So.2d 777 (Ala. 1981), and authorities cited therein. The important consideration is that, at the time appellant contemplated committing the instant felony, he was charged by law with knowledge that if he committed the felony he would be subject to punishment under the Habitual Offender Act. Coker v. State, 396 So.2d 1094 (Ala.Cr.App. 1981).