noting that generally the law in effect at the time of the commission of the offense controls the prosecution, including the sentence
How later courts described this case
- noting that generally the law in effect at the time of the commission of the offense controls the prosecution, including the sentence
- "It is well settled that the law in effect at the time of the commission of the offense controls the prosecution. See Davis v. State, 571 So. 2d 1287, 1289 (Ala. Crim. App. 1990) ('A defendant's sentence is determined by the law in effect at the time of the commission of the offense.'); Hardy v. State, 570 So. 2d 871 (Ala. Crim. App. 1990) (unless otherwise stated in the statute, the law in effect at the time the offense was committed controls the offense); and Jefferson v. City of Birmingham, 399 So. 2d 932 (Ala. Crim. App. 1981) (law in effect at the time of the offense governs prosecution)."
- "A defendant's sentence is determined by the law in effect at the time of the commission of the offense."
- noting that “the law in effect at the time of the commission of the offense controls the prosecution”
Written by the judges who cited it.
The opinion
I disagree with the majority's conclusion regarding the effective date of Act No. 77-607 , Ala. Acts 1977. As the majority notes in its opinion, the original effective date of Act No. 77-607 , Ala. Acts 1977, was May 16, 1978. Relying on the 1978 House Journals, the majority states that House Bill 10 was enacted as Act No. 78-770 , Ala. Acts 1978; that House Bill 10 amended § 9910, Act No. 77-607 , Ala. Acts 1977, which set forth the effective date for that act; and that the effective date of Act No. 77-607 , Ala. Acts 1977, was changed to June 1, 1979. Initially, I question the propriety of relying on house bills and house journals to determine that, in Act No. 78-770 , Ala. Acts 1978, the legislature amended the effective date of Act No. 77-607 , Ala. Acts 1977, because such an amendment is not apparent based on the text of the actual act that was passed.
Moreover, it is not entirely clear what law was in effect at the time of the offense in this case. The title of Act No. 78-770 , Ala. Acts 1978, stated:
"To amend Sections 130, 1230, 2611, 2612, 3202, 3203, 3204, 3207, 3208, 3210, 3250, 3280, 4045, 4115, 4601, 4608, 4705, 5511, 5530, and 9901 of Act No. 607 , S. 33, Regular Session 1977 (Acts of Alabama 1977, p. 812), entitled `An Act To provide an entirely new criminal code for the State of Alabama; defining offenses, fixing punishment; repealing numerous specific code sections and statutes that conflict herewith as well as all other laws that conflict with this act.'"
Further, Act No. 78-770 , Ala. Acts 1978, provides, in pertinent part:
" Be it Enacted by the Legislature of Alabama:
"Section 1. Sections 130, 1230, 2611, 2612, 3202, 3203, 3204, 3207, 3208, 3210, 3250, 3280, 4045, 4115, 4601, 4608, 4705, 5511, 5530, and 9901 of Act No. 607 , S. 33, Regular Session 1977 (Acts of Alabama 1977, p. 812), the Alabama Criminal Code, are hereby amended to read as follows:"
Section 9910 of Act No. 77-607 , Ala. Acts 1977, is not listed as one of the sections being amended. Immediately thereafter, the amended provisions of Act No. 77-607 , Ala. Acts 1977, appear in quotation marks and the various section numbers are not in bold print. After the last enumerated amended provision, the following language appears:
"Section 9910 Time of Taking Effect.
"This Act shall take effect at 12:01 A.M. o'clock on June 1, 1979."
Unlike the sections of Act No. 77-607 , Ala. Acts 1977, that were specifically being amended, § 9910 in Act No. 78-770 , Ala. Acts 1978, was not in quotation marks, and its section number was set forth in bold print. Finally, Act No. 78-770 , Ala. Acts 1978, does not include any other section setting forth the effective date of that act. Therefore, it appears that § 9910 in Act No. 78-770 , Ala. Acts 1978, actually established the effective date of that act rather than the effective date for Act No. 77-607 , Ala. Acts 1977.
Moreover, the legislature subsequently enacted Act No. 79-125 , Ala. Acts 1979. The title and the text of that act specifically stated that it was amending § 9910 of Act No. 77-607 , Ala. Acts 1977. Further, the amended text of § 9910, Act No. 77-607 , Ala. Acts 1977, is in quotation marks, and the section number is not set forth in bold print. 7 Therefore, we presume that, *Page 1008
if the legislature had intended to amend the effective date of Act No. 77-607 , Ala. Acts 1977, in Act No. 78-770 , Ala. Acts 1978, it knew how to do so. See Ex parte Jackson , 614 So.2d 405 (Ala. 1993).
Based on the title of Act No. 78-770 , Ala. Acts 1978, and the actual text of the act, it is not clear that that act actually amended § 9910, Act No. 77-607 , Ala. Acts 1977, and changed the effective date of Act No. 77-607 , Ala. Acts 1977. Therefore, Act No. 77-607 , Ala. Acts 1977, may have become effective on May 16, 1978.
Further, although Act No. 79-125 , Ala. Acts 1979, specifically changed the effective date of Act 77-607, Ala. Acts 1977, to January 1, 1980, that act did not become effective until May 29, 1979, more than one year after Act No. 77-607 , Ala. Acts 1977, was originally scheduled to take effect. Therefore, based on the legislative history regarding these various acts, it is not clear what law was actually in effect between May 16, 1978, and May 29, 1979, and what law governed offenses that occurred during this time. Accordingly, I do not agree with the majority's holding that Title 13, Ala. Code 1975, was clearly the law in effect at the time the appellant committed the offense in this case and its holding that the statement in Hogan regarding the effective date of Act No. 77-607 , Ala. Acts 1977, was clearly erroneous and due to be overruled.
For the above-stated reasons, I respectfully concur in the result.
7 Unlike Act No. 78-770 , Ala. Acts 1978, Act No. 79-125 , Ala. Acts 1979, included a separate section that established the effective date of that act.