
    Ex parte Walter Eugene ROBERTS. (Re STATE of Alabama v. Walter Eugene ROBERTS).
    1931466.
    Supreme Court of Alabama.
    April 21, 1995.
    Rehearing Denied May 19, 1995.
    
      Mark B. Craig of Brown, Willman & Craig, P.C., Decatur, for petitioner.
    Jeff Sessions, Atty. Gen., and Gail Ingram Hampton, Asst. Atty. Gen., for respondent.
   KENNEDY, Justice.

Walter Eugene Roberts seeks a writ of mandamus directing the Morgan County Circuit Court not to retry the criminal ease against him, but to accept his plea of double jeopardy.

Roberts was convicted of trafficking in cannabis, based on his possession of more than 2.2 pounds, in violation of § 13A-12-231, Ala.Code 1975. The State’s expert toxicologist testified at Roberts’s trial that the marijuana weighed 9.8 pounds. However, on cross-examination, the expert testified that she did not determine whether the marijuana weighed consisted of seeds and stalks. The jury was not charged on any lesser included offenses. The Court of Criminal Appeals reversed the conviction, holding that the State had failed to prove a prima facie case. Roberts v. State, 612 So.2d 1312 (Ala.Cr.App.1992).

The trial court scheduled a retrial on the trafficking charge. Roberts filed a petition for a writ of mandamus with the Court of Criminal Appeals. That court denied the petition, without opinion, 662 So.2d 303. Roberts has now filed a mandamus petition with this Court. See Rule 21(e), Ala. R.App.P.

Roberts argues that the writ of mandamus should be available to compel the circuit court to accept a double jeopardy plea and to bar a retrial after the first conviction is reversed for the State’s failure to prove a prima facie ease.

A writ of mandamus is a drastic and extraordinary remedy. It requires a showing 1) that the petitioner has a clear legal right to the order sought; 2) that the respondent has an imperative duty to perform and has refused to do so; 3) that there is no other adequate remedy; and 4) that the jurisdiction of the court is properly invoked. Ex parte Johnson, 638 So.2d 772 (Ala.1994).

In Ex parte Spears, 621 So.2d 1255 (Ala.1993), this Court held that the defendant was not entitled to mandamus review of his double jeopardy claims, even though an erroneous ruling by the trial court could result in an expensive and unnecessary trial. “Mandamus review will generally be restricted in the future to those eases where one of the recognized exceptions applies, or to those extraordinary cases where the rights of the parties cannot be adequately protected by appellate review of a final judgment.” Spears, 621 So.2d at 1258.

We conclude that Roberts’s rights cannot adequately be protected by appellate review of a final judgment and should be protected by a writ of mandamus. We note that this case is factually distinguishable from Spears. Spears’s first trial resulted in a mistrial shortly after the trial began. Additionally, a review of Spears’s double jeopardy claims would have required a determination of whether the prosecutor intentionally provoked a mistrial when he violated a gag order preventing him from discussing the case with the press. Roberts, however, based on the constitutional protection against double jeopardy, claims a clear legal right not to be retried on the same charge following a reversal of his first conviction for the State’s failure to prove the offense charged; to review his claim would not require any factual determination such as would have been required in Spears.

The Fifth Amendment of the United States Constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” The Double Jeopardy Clause generally protects a person from being convicted twice for the same crime. The United States Supreme Court has long recognized that the Double Jeopardy Clause protects a person not only from being subjected to double punishments, but also from being put to trial twice for the same offense. Abney v. United States, 431 U.S. 651, 660-61, 97 S.Ct. 2034, 2040-41, 52 L.Ed.2d 651 (1977).

In Abney, the defendants filed a motion to dismiss an indictment they claimed violated the Double Jeopardy Clause. The Supreme Court held that the motion to dismiss was immediately appealable — the defendants did not have to wait for a review after a second trial. The Court held that “the rights conferred on a criminal accused by the Double Jeopardy Clause would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence,” and that “the guarantee against double jeopardy assures an individual that, among other things, he will not be forced, with certain exceptions, to endure the personal strain, public embarrassment, and expense of a criminal trial more than once for the same offense.” 431 U.S. at 660, 661, 97 S.Ct. at 2040-41, 2041 (emphasis added).

Roberts’s conviction for trafficking in cannabis was reversed because of the State’s failure to prove all the elements of the crime. We strongly disagree with the State’s characterization of the reversal as being based on a mere “technicality.” The legislature has clearly stated its intention that in proving a trafficking charge by proof that a defendant was in possession of 2.2 pounds of marijuana, neither the “matured stalks of the plant” nor the “sterilized seed of the plant which is incapable of germination” shall be included when weighing the marijuana. § 20-2-2(15); see also, Ex parte Presley, 587 So.2d 1022 (Ala.1991).

It is a fundamental concept of criminal law that the State must prove all the elements of the offense charged against the defendant. When the State fails to present sufficient proof of all the elements, a conviction must be reversed and a judgment for the defendant must be rendered, under the principles of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). “The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” Burks, 437 U.S. at 11, 98 S.Ct. at 2147.

Burks distinguished between a reversal based on insufficient evidence and one based on errors in the trial proceedings. The Double Jeopardy Clause does not preclude the State’s retrying a defendant whose conviction is set aside because of an error in the proceedings. Roberts’s conviction was set aside because the State presented insufficient evidence. Thus, the Double Jeopardy Clause bars a retrial on the trafficking charge.

The State is also barred from retrying Roberts on any lesser included offense. In Ex parte Beverly, 497 So.2d 519, 524-25 (Ala.1986), this Court held that where a defendant’s conviction on the charged offense is reversed because of insufficient evidence and in the trial the jury had not been charged on a lesser included offense, the defendant may not be retried on a lesser included offense. It is undisputed that Roberts’s jury was not charged on any lesser included offenses.

It is well established that if an appellate court holds the evidence insufficient to support a jury’s guilty verdict on a greater offense, but finds the evidence sufficient to support a conviction on a lesser included offense, it may enter a judgment on that lesser included offense, provided that the jury was charged on the lesser included offense. See, for example, Ex parte Edwards, 452 So.2d 508 (Ala.1984), in which this Court held that the double jeopardy principles were not violated in the case of a defendant who, having been convicted of capital murder by a jury that had been given instructions on the lesser included offense of manslaughter, secured a reversal of the capital murder conviction because of insufficient evidence, but was then sentenced for the lesser offense of manslaughter. In this present case, however, Roberts’s jury was not instructed on any lesser offenses.

Accordingly, we must conclude that Roberts is entitled to a writ of mandamus directing the circuit judge not to retry him on the trafficking charge or for any lesser included offenses.

WRIT GRANTED.

HORNSBY, C.J., and ALMON, SHORES, HOUSTON, INGRAM, and COOK, JJ., concur.

MADDOX, J., concurs in part and dissents in part.

MADDOX, Justice

(concurring in part; dissenting in part).

I agree with the majority that Roberts cannot be retried for trafficking, but I must respectfully disagree with the majority on its holding that Roberts cannot be found guilty of the lesser included offense of possession of marijuana.

In Ex parte Edwards, 452 So.2d 508 (Ala.1984), the appellant, Ervin Edwards, was convicted of capital murder. This Court reversed the affirmance of the Court of Criminal Appeals, on the ground that the evidence was insufficient to sustain the conviction. This Court concluded, however, that there was sufficient evidence to support a conviction of first degree manslaughter; it remanded the case to the Court of Criminal Appeals, and that Court reversed and remanded with instructions to the trial court for the entry of a judgment on the lesser included offense and for proper sentencing. Edwards v. State, 452 So.2d 506 (Ala.Crim.App.1983).

In Edwards, the defendant again sought review in this Court, claiming that his Fifth Amendment right to be free from double jeopardy was violated when the Court of Criminal Appeals remanded his case following the reversal of his capital murder conviction. He based this claim on the fact that the ground cited for the reversal was insufficient evidence to support the verdict. This Court held that the Double Jeopardy Clause had not been violated and affirmed his conviction.

The defendant here, like the defendant in Edwards, claims that his conviction should have been reversed and a judgment for him rendered by the Court of Criminal Appeals; he cites, among other cases, Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). The majority agrees with his argument that, after the Court of Criminal Appeals found that there was insufficient evidence to sustain his conviction for trafficking, that court could not remand the case for a new trial on a lesser included offense.

This Court, in Edwards, wrote:

“After carefully considering petitioner’s arguments, we conclude that the Court of Criminal Appeals correctly relied on the Seventh Circuit’s interpretation of Burks in Dickenson v. Israel, 644 F.2d 308 (7th Cir.1981). The circumstances in Dicken-son are similar to those in the present case. There was insufficient evidence to support a conviction for armed robbery. The court found, however, that there was sufficient evidence to support a conviction for a lesser degree of robbery. The case was remanded to the trial court, judgment was entered on the lesser included offense, and the defendant was resenteneed accordingly. In Dickenson, the jury had been instructed on the elements of armed robbery and the lesser included charge of robbery. In the present case, the jury was properly charged on the lesser included offense of manslaughter.
“The trial court’s opinion, reported as Dickenson v. Israel, 482 F.Supp. 1223 (E.D.Wis.1980), was adopted as the opinion of the Seventh Circuit, and the following authority was cited in support of its decision:
“ ‘State and federal appellate courts have long exercised the power to reverse a conviction while at the same time ordering the entry of judgment on a lesser-included offense. See, e.g., United States v. Cobb, 558 F.2d 486, 489 (8th Cir.1977); Austin v. United States, 127 U.S.App.D.C. 180, 191-192, 382 F.2d 129, 140-142 (D.C.Cir.1967); Luitze v. State, 204 Wis. 78, 234 N.W. 382 (1931). The usual situation in which this occurs is when there is insufficient evidence to support one of the elements of an offense. A court may be reluctant to overturn an entire conviction when there is ample evidence to support a lesser-ineluded charge which does not contain the insufficiently proven element. The authority to order the entry of judgment on the lesser-ineluded offense is both statutory, see, e.g. 28 U.S.C. § 2016, and based on the common law. The constitutionality of the practice has never seriously been questioned.’ 482 F.Supp. at 1225.
“The trial court in Dickenson went on to distinguish the Burks ease, and the Seventh Circuit, in affirming, reasoned that the jury had found the existence of every element of the lesser-ineluded offense by returning a verdict on the higher degree.
“In the present case, the Court of Criminal Appeals found further support for its decision in finding that:
“ ‘The same type of procedure approved by the Seventh Circuit is followed by most state courts that have faced the issue. See Searcy v. State, 163 Ga.App. 528, 295 S.E.2d 227 (1982) [Evidence was insufficient to support a conviction on two felony counts of theft by receiving stolen property, but sufficient to sustain a misdemeanor charge — the proper remedy was to remand to the trial court for proper sentencing under the lesser-ineluded offense.]; Beasley v. State, 394 So.2d 201 (Fla.App.1981) [Evidence was insufficient to support a conviction of grand theft, but sufficient to sustain the lesser-ineluded offense of petty theft — the case was remanded for proper sentencing on the lesser-included offense.]; State v. Byrd, 385 So.2d 248 (La.1980) (wherein the Supreme Court noted that ordering entry of judgment of guilty on lesser-included offense accords with overwhelming treatment of problem by other jurisdictions); State v. Coston, [182 Conn. 430] 438 A.2d 701 (1980); State v. Plakke, [31 Wash.App. 262] 639 P.2d 796 (1982).’
“We further conclude that the Court of Criminal Appeals was correct in finding that Coleman [v. State, 373 So.2d 1254 (Ala.Crim.App.1979) ], and Watkins v. State, 389 So.2d 186 (Ala.Crim.App.1980) ], are not controlling in this case. That court stated that ‘[t]hese two Alabama cases deal with whether a defendant may be retried after a finding of insufficient evidence; they do not specifically address the issue of remanding the case for proper sentencing.’
“For the reasons stated, the judgment of the Court of Criminal Appeals is due to be, and it hereby is, affirmed.”

Edwards, 452 So.2d at 509-10.

In Ex parte Bohannon, 564 So.2d 854 (Ala.1988), the defendant was convicted of trafficking in marijuana, a violation of Ala.Code 1975, § 20-2-80, and was sentenced to 10 years’ imprisonment and was fined $25,000. The Court of Criminal Appeals affirmed, without opinion; see Bohannon v. State, 515 So.2d 153 and 519 So.2d 1380. This Court granted the defendant’s petition for the writ of certiorari and, upon review, reversed the judgment of affirmance, holding that the state had failed to prove that he possessed more than 2.2 pounds of marijuana, an essential element of trafficking under § 20-2-80. On remand, the Court of Criminal Appeals reversed the conviction, saying:

“Pursuant to [the Supreme Court’s opinion and judgment in Ex parte Bohannon ], we reverse Bohannon’s conviction for trafficking. However, we find that the state clearly proved each and every element of possession of marijuana, § 20-2-70, which is a lesser included offense of the crime charged. Thus, we are authorized to apply the doctrine of Edwards v. State, 452 So.2d 506 (Ala.Cr.App.1983), aff'd, 452 So.2d 508 (Ala.1984). See also Borden v. State, 523 So.2d 508 (Ala.Cr.App.1988). Accordingly, we reverse Bohannon’s conviction for trafficking, but we remand with instruction that a judgment of guilty be entered for the lesser included offense of possession of marijuana and for proper resentencing. Due return should be filed with this court showing the action [taken] by the trial court.”

Bohannon v. State, 564 So.2d 859, at 859 (Ala.Crim.App.1988). In Ex parte Bohannon, 564 So.2d 854 (Ala.1988), this Court reversed the judgment of the Court of Criminal Appeals affirming Bohannon’s conviction for trafficking in cannabis (based on his possession of more than 2.2 pounds of marijuana), in violation of Ala.Code 1975, § 20-2-80, the same charge in this case. This Court’s reversal was based on this Court’s holding that the State had failed to prove that Bo-hannon possessed in excess of 2.2 pounds of “marijuana,” as the term is defined in § 20-2-2(15).

The majority also holds that “[t]he State is also barred from retrying Roberts on any lesser included offense,” writing:

“In Ex parte Beverly, 497 So.2d 519, 524-25 (Ala.1986), this Court held that where a defendant’s conviction on the charged offense is reversed because of insufficient evidence and in the trial the jury had not been charged on a lesser included offense, the defendant may not be retried on a lesser included offense. It is undisputed that Roberts’s jury was not charged on any lesser included offenses.”

662 So.2d at 232.

I must respectfully disagree. I do not think Ex parte Beverly holds that a defendant cannot be retried if the jury was not instructed on a lesser included offense. Admittedly, there is some language in Ex parte Beverly that unfortunately suggests that the State cannot try a defendant on a lesser included offense unless the jury was instructed on the lesser included offense at trial. I concurred in the decision in Ex parte Beverly, but if that decision stands for that proposition, and I do not believe it does, then I must respectfully reject it, and I would join the special writing of Mr. Justice Jones in Ex parte Beverly, who wrote the following:

“I agree that Defendant’s conviction for first degree murder is due to be affirmed. The intentional killing element of the capital offense for which Defendant was indicted and tried was fully supported by the evidence; thus, the State’s right to retry Defendant on the reindicted charge of first degree murder is not impugned.
“I also agree that Defendant’s conviction for grand larceny is due to be reversed and judgment thereon rendered. But I do not agree that this result obtains because the trial court, upon Defendant’s second trial, failed to instruct the jury on grand larceny as a lesser-ineluded offense of robbery. The Court’s opinion creates the anomaly of forcing a defendant to make himself subject to retrial if he requests a lesser-included offense in those cases in which he challenges the sufficiency of the evidence with respect to the higher offense. Furthermore, the opinion’s reference to the State’s burden to request the lesser-ineluded offense charge is not realistic. Stated bluntly, I have never heard of it. I would reaffirm Coleman, rather than overrule it. Coleman v. State, 373 So.2d 1254 (Ala.Crim.App.1979).”

497 So.2d at 530. I would follow the same procedure that this Court followed in Ex parte Edwards and Ex parte Bohannon, and while I agree that Roberts cannot be retried for, or convicted of, trafficking, I would authorize the trial court to enter a judgment on the lesser included offense of possession of marijuana and to impose a proper sentence; consequently, I must respectfully dissent.  