Opinion
80-524.
September 4, 1981.
Certiorari to the Court of Criminal Appeals, 404 So.2d 106
Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for petitioner
Robert P. Lane of Phillips Funderburk, Phenix City, for respondent
Writ quashed as improvidently granted
TORBERT, C.J., JONES, EMBRY, BEATTY and ADAMS, JJ., concur
MADDOX and ALMON, JJ., dissent
SHORES, J., not sitting
I respectfully dissent from the decision of the majority of this Court to quash the writ of certiorari as improvidently granted
As Judge Bookout of the Court of Criminal Appeals has pointed out, the cases holding that a plea of nolo contendere cannot be used in another proceeding should not be followed
Justice Goodwyn, in his dissent in State v. Thrower, 272 Ala. 344, 131 So.2d 420 (1961), states the better reasoning as follows: "It is my view that the nature of the plea, whether it be one of `guilty', `not guilty', or `nolo contendere' . . . is immaterial in determining whether there has been a `conviction . . ." Code 1975, § 13A-5-9, provides for punishment based on prior "convictions" and does not speak to the plea in the prior proceeding. To disallow the use of a conviction based on a plea of nolo contendere is to allow a defendant to circumscribe the operation and purpose of the statute
It is my opinion that a conviction in another state, based on a plea of nolo contendere, should be used like any other conviction in determining punishment under § 13A-5-9
MADDOX, J., concurs