
    Charles GHOLSTON v. STATE.
    CR-90-1450.
    Court of Criminal Appeals of Alabama.
    Feb. 28, 1992.
    Rehearing Denied May 1, 1992.
    John Edmond Mays, Decatur, for appellant.
    James H. Evans, Atty. Gen., and Jack Willis, Asst. Atty. Gen., for appellee.
   TAYLOR, Judge.

The appellant, Charles Gholston, was convicted of being a person, previously convicted of a crime of violence, found to be in possession of a pistol, a violation of § 13A-11-72, Code of Alabama 1975. He was also convicted of menacing, a violation of § 13A-6-23, Code of Alabama 1975. He was sentenced to six months in jail on the menacing conviction. His sentence on the conviction for unlawfully possessing a pistol was enhanced pursuant to the Habitual Felony Offender Act (§ 13A-5-9, Code of Alabama 1975) to a term of 10 years in the penitentiary. Both sentences are to run concurrently. He presents two issues on appeal.

I

The appellant first contends that the trial court erred by denying his pretrial motion to be allowed to stand trial in civilian clothing. At the time of trial, he was an inmate with the Alabama Department of Corrections serving a sentence for attempted murder. He was brought to the courtroom wearing a prison jumpsuit stenciled with the words “Alabama Department of Corrections.”

The state cannot compel a defendant to stand trial while dressed in prison clothes. Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). There, the Supreme Court stated that “the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes_” 425 U.S. at 512, 96 S.Ct. at 1697. However, not every instance where a defendant stands trial in prison garb is a per se violation of the Fourteenth Amendment, because of the harmless error rule. This court, in interpreting Estelle v. Williams, has ruled in several cases that the defendant is not prejudiced by wearing prison clothing at trial where the evidence would necessarily and unavoidably inform the jury of the defendant’s status as an inmate. George v. State, 423 So.2d 335 (Ala.Cr.App.1982); Jacques v. State, 409 So.2d 876 (Ala.Cr.App.1981), aff’d 409 So.2d 885 (Ala.1982). This is not the situation in this case.

In George v. State, the defendant was being tried for a robbery that was committed in the penitentiary where he was an inmate. Therefore, the jury was certain to be informed that the defendant was in prison at the time of the alleged offense. We stated that “in the majority of cases, courts have held that a defendant should not be compelled to attend trial in prison clothing because it would tend to prejudice the jury against the defendant and, thereby, negate the presumption of innocence.” George, 423 So.2d at 336.

The defendant in Jacques v. State, was being tried for escape from prison. Here again, the nature of the offense necessitates that the jury be informed of the defendant’s status as an inmate. In affirming Jacques’s conviction we wrote:

“The defendant was not prejudiced by any failure on the part of the State to provide him with other clothes. In saying this, we do not recommend that even in such a case a convict should not be dressed with appropriate clothes throughout his trial, clothing distinctly different from his prison clothes.”

409 So.2d at 880. (Emphasis added.)

In the case at hand, the appellant was not being tried for an offense which necessitated that the jury be informed that he was presently an inmate. There is a danger that the jury will convict, upon general principles, an inmate. The presumption of innocence is in danger of “going out the window” in such a circumstance. Therefore, his constitutional rights were infringed when the jury was allowed to see him in prison clothing.

II

''The appellant contends that the trial court erred in sentencing him as a habitual offender. Specifically, he contends that the Habitual Felony Offender Act is not applicable to crimes that require the same previous felony conviction as a necessary element of the offense. We agree and find that reversible error occurred when the first felony, an element of the offense, was also used to enhance punishment.

The appellant was convicted of unlawfully possessing a pistol in violation of § 13A-11-72, Code of Alabama 1975. Section 13A-11-72, reads in pertinent part as follows:

“(a) No person who has been convicted in this state or elsewhere of committing or attempting to commit a crime of violence shall own a pistol or have one in his possession or under his control.”

(Emphasis added). To bring the appellant within the purview of this statute, the State introduced his prior conviction for attempted murder. The State then used this same attempted murder conviction to enhance the appellant’s sentence pursuant to § 13A-5-9, Code of Alabama 1975.

We addressed this identical issue in Wigley v. State, 456 So.2d 339 (Ala.Cr.App.1982). In Wigley, we held:

“In instances when there is only one prior conviction, and that conviction is a necessary element or ingredient of the currently charged offense, such prior conviction is not available and may not again be used to enhance the punishment under the Habitual Felony Offenders Act.”

Wigley, 456 So.2d at 341.

In Dickerson v. State, 517 So.2d 625 (Ala.Cr.App.1986), rev’d on other grounds, 517 So.2d 628 (Ala.1987), there were a number of prior felony convictions, some of which were used to enhance punishment. Use of the conviction that was an element of the offense was not necessary to impose the sentence that was imposed. Language in that case suggesting that the trial court may make double use of the prior felony conviction was therefore dicta only. We overrule Dickerson to the extent that Dickerson stands for that proposition. A prior felony conviction that is used to bring the appellant within the purview of § 13A-11-72 cannot also be used to enhance his sentence under the Habitual Felony Offender Act. Where an accused has several prior felony convictions, those convictions not employed to bring him under § 13A-11-72 may still be used to enhance his sentence pursuant to the Habitual Felony Offender Act.

For the foregoing reasons stated in parts I and II above, we reverse the appellant’s convictions for menacing and for possession of a pistol by a felon and remand this case to the Limestone Circuit Court for a new trial or other proceedings.

REVERSED AND REMANDED.

All the Judges concur, except BOWEN, J., who concurs in part and dissents in part, with opinion, and MONTIEL, J., who concurs in part and dissents in part, with opinion.

BOWEN, Judge,

concurring in part, dissenting in part.

I concur in Part I of the opinion of the majority that the appellant’s conviction must be reversed because the appellant was forced to stand trial in prison garb. However, with regard to Part II of the majority opinion, I agree with the argument presented by the Attorney General and expanded in Judge Montiel’s dissent. The reasoning in Wigley v. State, 456 So.2d 339 (Ala.Cr.App.1982), is erroneous because, for purposes of the crime involving the possession of a pistol by a person who has been convicted of a crime of violence, Ala.Code 1975, § 13A-ll-72(a), a “crime of violence” as defined by Ala.Code 1975, § 13A-ll-70(2), may include a misdemean- or which would not trigger the application of the Habitual Felony Offender Act.

The issue in this case involves a question of legislative intent and not jeopardy. In Kuenzel v. State, 577 So.2d 474, 488 (Ala.Cr.App.1990), affirmed, 577 So.2d 531 (Ala.), cert. denied, — U.S. -, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991), this Court found “no merit in [the defendant’s] claim that the use of the prior conviction as an element of the statutory capital offense and its use in sentencing constituted double jeopardy.” (Quoting Hubbard v. State, 500 So.2d 1204, 1215 (Ala.Cr.App.), affirmed, 500 So.2d 1231 (Ala.1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1591, 94 L.Ed.2d 780 (1987)). Consideration of the same felony to convict a defendant of possession of a firearm by a convicted felon and to enhance his punishment is neither a double prosecution nor a double punishment and does not implicate the double jeopardy clause. United States v. Wallace, 889 F.2d 580, 584 (5th Cir.1989), cert. denied, 497 U.S. 1006, 110 S.Ct. 3243, 111 L.Ed.2d 753 (1990). See also United States v. Ainsworth, 932 F.2d 358, 363 (5th Cir.), cert. denied, — U.S. -, 112 S.Ct. 346, 116 L.Ed.2d 286 (1991).

There is a split of authority among the states as to whether, in a prosecution for the possession of a weapon by a convicted felon, a single prior felony conviction may be used both as an element of the offense and for the purpose of imposing an enhanced punishment under a habitual offenders act. Annot., 37 A.L.R.4th 1168 (1985). This Court must assume that in passing the Habitual Felony Offender Act the Alabama Legislature was aware of the other provisions of the Criminal Code requiring an enhanced punishment. See Belcher v. McKinney, 333 So.2d 136, 140 (Ala.1976) (“we are aided by the presumption that the legislature made an informed judgment as to the need in employing this classification”).

Wigley should be overruled.

MONTIEL, Judge,

concurring in part and dissenting in part.

Although I concur with the majority’s holding in part I of its opinion, I respectfully dissent from the holding in part II. In the opinion, the majority states that “[a] prior felony conviction that is used to bring the appellant within the purview of § 13A-11-72 [unlawful possession of a pistol by a person who has previously been convicted of a crime of violence] cannot also be used to enhance his sentence under the Habitual Felony Offender Act.” The majority opinion relies on Wigley v. State, 456 So.2d 339 (Ala.Crim.App.1982), for this holding. The rationale behind Wigley is that since the legislature enacted § 13A-11-84, Code of Alabama 1975, which prescribes the sentence for the violation of § 13A-11-72, it did not intend the Habitual Felony Offender Act to apply to convictions obtained under § 13A-11-72. In Wigley this court stated:

“In instances when there is only one prior conviction, and that conviction is a necessary element or ingredient of the currently charged offense, such prior conviction is not available and may not again be used to enhance the punishment under the Habitual Felony Offenders Act. To hold otherwise would nullify the punishment provision of the currently charged offense as contained in § 13A-ll-84(a), Ala.Code 1975, because the pri- or conviction would always activate the Habitual Felony Offenders Act; we do not believe that the legislature intended that result.”

Wigley, 456 So.2d at 341 (emphasis added). This last statement is incorrect. Section 13A-ll-72(a), Code of Alabama 1975, provides that “no person who has been convicted in this state or elsewhere of committing or attempting to commit a crime of violence shall own a pistol or have one in his possession or under his control.” “Crime of violence” is defined as “[a]ny of the following crimes or an attempt to commit any of them, namely murder, manslaughter (except manslaughter arising out of the operation of a vehicle), rape, mayhem, assault with intent to rob, assault with intent to ravish, assault with intent to murder, robbery, burglary, kidnapping and larceny.”

If the underlying conviction for a crime of violence was theft in the third degree or assault in the third degree, the Habitual Felony Offender Act would not be activated since these two offenses are Class A misdemeanors and the defendant would have to be sentenced under § 13A-11-84(a). Likewise, if the underlying conviction was for attempted burglary in the third degree, attempted robbery in the third degree, attempted assault in the second or third degree, attempted rape in the second degree, attempted theft in the second or third degree, then the defendant could not be sentenced as a habitual offender because all of these offenses are misdemeanors. Therefore, the punishment provision of § 13A-ll-84(a) would not be nullified by allowing the conviction for a crime of violence that was an essential element of the offense charged in § 13A-ll-72(a) to also be used for enhancement. I believe that the legislature intended this offense to be covered by the Habitual Felony Offender Act. Thus, if a person who has previously been convicted of a crime of violence is found to be in possession of a pistol, that person can be sentenced to no more than five years in prison if that previous conviction was for a misdemeanor. However, if the previous conviction for a crime of violence was a felony, the person would be subject to the sentencing provisions of the Habitual Felony Offender Act just like any other person who has a previous felony conviction.

The double use of the underlying conviction is not, in any way, prejudicial to the defendant. This seems no different than allowing the State in a capital case to prove the felony that is an essential element of the capital offense at the guilt phase of the trial and then to prove the same felony as an aggravating offense in the sentencing phase. For the above reasons, I dissent from the majority’s holding in part II.  