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Tucker v. State11/30/2001
On January 8, 1999, Andrea Raquel Tucker was indicted for two counts of unlawful distribution of a controlled substance (marijuana). On January 10, 2001, the State filed a motion to amend the indictment to include the fact that Tucker had distributed the marijuana within three miles of a school. See § 13A-12-250, Ala. Code 1975. The trial court granted the State's motion, over Tucker's objection. (C.R. 12.)
On March 13, 2001, Tucker was convicted of two counts of unlawful distribution of a controlled substance. On June 8, 2001, the trial court sentenced Tucker to serve two years in prison on each charge, followed by one year of probation. The trial court enhanced each sentence by five years pursuant to § 13A-12-250 and ordered that the sentences were to run concurrently. Tucker filed a motion for a new trial and for reconsideration of the sentences, which the trial court summarily denied. This appeal follows.
First, Tucker argues that the trial court erroneously allowed the State to amend the indictment to allege that the sales had occurred within three miles of a school. Specifically, Tucker contends that the amendment "resulted in the charge of a different offense, adding an additional element to defend against ...." In Poole v. State, [Ms. CR- 99-1200, August 31, 2001] ___ So.2d ___, ___ (Ala. Crim App. 2001), this Court held as follows:
"Based on the language in Apprendi[v. New Jersey, 530 U.S. 466 (2000)] and on the prior holdings of that Court, we do not believe that the Supreme Court intended to impose presentment and indictment requirements on the individual states' rights to define criminal activity.
"The Alabama Legislature did not intend to create new offenses, distinct and separate from § 13A-12-211, when it enacted §§ 13A-12-250 and 13A-12-270; it intended instead to provide harsher penalties, i.e., each statute is prefaced with the following language, `In addition to any penalties heretofore or hereafter provided by law for any person convicted of an unlawful sale of a controlled substance....' We have stated that the intent was to make a drug-free zone around schools and housing projects. Qualls v. State, 555 So. 2d 1158 (Ala.Crim.App. 1989).
"....
"Our Legislature has defined the offense of distributing a controlled substance -- that definition does not include the location of the crime. However, under Apprendi, because this fact may result in the increase of Poole's sentence above the statutory maximum, this fact must be presented to the jury and proven beyond a reasonable doubt. The location of the crime is relevant only to the sentence Poole may receive and not to whether, in fact, Poole committed the offense of distributing a controlled substance as charged in the indictment. 530 U.S. at 484.
"To require an indictment to include any applicable enhancements would also elevate the fact that made the enhancement applicable to the exalted status of an `essential element' of the crime charged and would invite challenges to the validity of the underlying convictions in every court in this state. Our refusal to endorse the indictment requirement is also consistent with the views expressed by the Alabama Supreme Court in Ex parte Parker, 740 So. 2d 432 (Ala. 1999). In Parker, that Court held that the fact that the defendant had prior DUI convictions that would elevate a fourth conviction for DUI to a felony conviction should not be alleged in the indictment.
"The implications of finding that any fact that may increase a punishment above the statutory maximum must be charged in an indictment are too enormous to mention in this opinion. Any defendant who has ever been sentenced under these statutory
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