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Apicella v. State4/28/2000
On Return to Remand
This cause was originally remanded to the trial court "with directions that that court enter specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in § 13A-5-49, [Ala. Code 1975,] each mitigating circumstance enumerated in § 13A-5-51, and any additional non-statutory mitigating circumstances offered pursuant to § 13A-5-52" and then, after considering these findings, to determine the appropriate punishment. See Apicella v. State, [Ms. CR-96-2285, February 25, 2000] ___ So.2d ___, ___ (Ala.Cr.App. 2000)(Baschab, J., concurring in result only). The trial court has complied with those directions and has submitted a new sentencing order on return to remand that satisfies the statutory requirements.
While conducting our review of the propriety of Apicella's sentence of death, pursuant to § 13A-5-53, Ala. Code 1975, we found that the trial court had stated in its sentencing order:
"The Court does not find statutory mitigating circumstance under Section 13A-5-51(1) to be present, to-wit: the defendant has no significant history of prior criminal activity because according to the pre-sentence investigation as prepared by the Alabama Board of Pardon and Paroles, the defendant has been arrested and in some cases convicted for driving under the influence on five (5) different occasions and was arrested for Burglary in 1976 with no disposition found, was arrested and charged with violation of Uniform Alabama Controlled Substances Act in 1977 and no disposition could be found. The Court further found from the investigation that the defendant was arrested for violation of Uniform Alabama Controlled Substances Act by the police department in Fairfield, Alabama, and fined $110.00 and further was arrested for the violation of Uniform Alabama Controlled Substances Act and pled guilty in the municipal court of the City of Birmingham and received a suspended misdemeanor sentence. The defendant was also arrested by the police department of Louisville, Kentucky for wanton endangerment in the first degree and carrying a concealed weapon in 1988. He was also charged in 1988 with robbery second degree; however, all of the felony cases for which the defendant was charged either the dispositions could not be found or the cases were dismissed. Even though the defendant has not been convicted of a prior felony conviction the Court finds that the consistent arrest record of the defendant for serious offenses disqualified him under this particular mitigating circumstance; therefore, the Court does not find this mitigating circumstance to be present." (R. on remand. 4-5.)(Emphasis added.)
Under Alabama law, "only convictions can negate the statutory mitigating circumstance of no significant prior criminal record. § 13A- 5-51, Ala. Code 1975; Freeman v. State, 651 So.2d 576, 597-98 (Ala.Cr.App. 1994)." Ex parte Burgess, [Ms. 1980810, January 28, 2000] ___ So.2d ___, ___ (Ala. 2000). See also Hallford v. State, 548 So.2d 526, 544 (Ala.Cr.App. 1988); Cook v. State, 369 So.2d 1251 (Ala. 1979). This Court has upheld the practice of not applying this mitigating provision when the significant history was based on prior misdemeanor convictions. Williams v. State, 601 So.2d 1062, 1084 (Ala.Cr.App. 1991). See Richardson v. State, 376 So.2d 205 (Ala.Cr.App. 1978), aff'd, 376 So.2d 228 (Ala. 1979). While the trial court may consider a defendant's arrest record in determining the weight to be given the mitigating circumstance listed in § 13A-5-51(1), Ala. Code 1975, its existence or nonexistence must be based only on whether the defendant has prior convictions.
Although we are reluctant to remand this cause, because the tr
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