Committee Comments

In Alabama, the right of a defendant to make a statement on his own behalf exists by common law only when there has been a felony conviction. In Bowles v. State, 241 Ala. 142, 1 So. 2d 665 (1941), the accused was convicted on a charge of misdemeanor, and the court was not required, before pronouncing sentence, to ask the accused why the judgment of the court should not be pronounced against him. However, Alabama decisions require that, in a felony conviction, the court must ask the convicted person if he has anything to say as to why sentence of the law should not be imposed upon him. See, e.g., Thomas v. State, 280 Ala. 109, 190 So. 2d 542 (1966); McGuff v. State, 49 Ala. App. 88, 268 So. 2d 868, cert. denied, 289 Ala. 746, 268 So. 2d 877 (1972).

Subsection (1) of section (b) allows defendant the right of allocution regardless of the gravity of the sentence imposed. The right may be lost, however, if defendant’s presence at sentencing is waived under Rules 26.7 and 9.1(b).

Subsection (2) is taken from ABA Standards for Criminal Justice, Sentencing Alternatives and Procedures 18-6.6(a)(iii) (2d ed. 1986), and requires that the court, at the time of sentencing, assure that the record accurately reflects the time already spent in custody. Report of the Alabama Comparative Committee to the Department of Court Management of the State of Alabama, at p. 30.

Before Act No. 58, Acts of Alabama, 1975 (2d Spec. Sess.), the law in Alabama provided that time spent incarcerated by the defendant before conviction did not count as a credit toward the sentence imposed. See, e.g., Ryan v. State, 100 Ala. 105, 14 So. 766 (1894); Teeple v. State, 54 Ala. App. 357, 308 So. 2d 717, cert. denied, 294 Ala. 772, 313 So. 2d 162 (1975); Robinson v. State, 47 Ala. App. 51, 249 So. 2d 872 (1971); Ex parte Cofield, 42 Ala. App. 344, 164 So. 2d 716 (1964).

Ala. Code 1975, § 15-18-5, provides that upon conviction and imprisonment for any felony or misdemeanor, the sentencing court shall order that the convicted person be credited with all of his actual time spent incarcerated pending trial for such offense.

Under subsection (3), the explanation of the sentence should include the terms of probation, the length and order of sentences if there are more than one, whether the new sentence is to be added onto or served concurrently with a sentence which the defendant is then serving, and whether any special circumstances are contemplated as part of the sentence.

Subsection (4) provides that the court shall inform the defendant of his right to appeal from a judgment.

In Alabama, the right to appeal is guaranteed by statute. Ala. Code 1975, § 12-22-130; see also State v. Bibby, 47 Ala. App. 240, 252 So. 2d 662 (1971); McCray v. State, 46 Ala. App. 588, 246 So. 2d 475 (1971). Except in death penalty cases, the appealing party is required to give some notice of intention to have appellate review to invoke the jurisdiction of the appellate court. An automatic appeal is taken in death penalty cases without any action by either the defendant or his counsel. See Ala. Code 1975, §§ 12-22-15 and 13A-5-55. In Alabama, the defendant has forty-two (42) days after sentencing to take an appeal. See Rule 4(b), A. R. App. P.

The rule conforms to the ABA, Standards for Criminal Justice, on the subject. Under ABA Standards for Criminal Justice, Criminal Appeals 21-2.1(b) (2d ed. 1986), the court imposing sentence assumes the burden of advising the defendant that he has the right of review and that the right must be exercised within a specified time. The Comparative Committee in Alabama recommended adoption of this standard. Report of the Alabama Comparative Committee to the Department of Court Management of the State of Alabama at p. 342.

Subsection (4) also provides that the court advise the defendant that if he is indigent, counsel will be appointed to represent him on appeal, if he desires, and that a copy of the record and reporter’s transcript will be provided at no cost to him for purposes of appeal.

Rule 26.9(c) is intended to simplify the method by which the clerk maintains criminal records and to prevent the need to duplicate entries on the case action summary sheet in a separate minute book. This section is not intended to change the information required in a minute entry, but is intended to eliminate the need for a particular form or for an elaborate recital. This section does not eliminate the need to show the presence of counsel at each stage of the proceedings, or the waiver thereof, nor does this rule eliminate the need to show that proceedings such as the entry of the plea occurred in open court.

Although not required, judges are encouraged to explain on the record or by separate order the reasons for their sentence in individual cases. This practice, if utilized, should help facilitate the development of precedents to which judges can refer for guidance in designing appropriate sentences within the wide ranges authorized bylaw. Without benchmarks, it is inevitable that the sentence in any given case will be based almost entirely on the personal experiences, judgment, and perceived expectations of the sentencing judge. Over time, case precedents will help structure and preserve judicial discretion. By making precedents available for review and comparison, disparate sentencing practices should be minimized.

By stating the reasons for a particular sentence, a judge can also help reduce, and perhaps eliminate, what might otherwise be perceived by the public, a victim, or a defendant, as an inappropriate sentence, and thereby bolster confidence in the criminal justice system.

Note from the reporter of decisions: The order amending Rule 26.9(b), effective August 1, 2002, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 2d.