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Ex Parte McKelvey
Citations: 630 So. 2d 56; 1992 WL 172862Docket: 1910434
Court: Supreme Court of Alabama; July 24, 1992; Alabama; State Supreme Court
Jeffrey Lee McKelvey was convicted of third-degree burglary and first-degree theft, receiving consecutive sentences of 15 years and 20 years, respectively. He appealed on three grounds: (1) the imposition of separate sentences for the burglary and theft, as both arose from the same act; (2) the admissibility of his confession, which he claimed was influenced by drug use; and (3) a trial court statement regarding a juror's relationship to him, which McKelvey argued could imply he had prior criminal issues. The Court of Criminal Appeals affirmed the convictions, ruling that McKelvey had not preserved the sentencing issue for appeal due to lack of objection at trial, citing *Harmon v. State* as precedent. However, this Court issued a writ of certiorari to specifically review the consecutive sentencing issue and remanded to the Court of Criminal Appeals for further consideration. The Court clarified that the question of improper sentencing can indeed be raised on direct appeal, not solely through post-conviction proceedings. Rule 32.1 of the Alabama Rules of Criminal Procedure allows defendants convicted of a crime to seek relief in the original court if jurisdiction issues are present. Rule 32.2(a)(3) prohibits relief on grounds that could have been raised at trial, except for claims under Rule 32.1(b). A petitioner can challenge improper sentencing for the first time in a post-conviction petition and on appeal if the court lacked jurisdiction. The case of McKelvey illustrates this, where the defendant's appeal regarding consecutive sentences for burglary and theft was not procedurally barred despite no objection at sentencing. According to Code of Alabama § 15-3-8, a defendant can be punished only once for acts punishable under different laws arising from the same transaction. Alabama case law supports that a defendant charged with both burglary and theft from the same incident may receive only one punishment, though both convictions can stand. The excerpt references several cases affirming this principle, including Ex parte Harmon and others which emphasize that while both convictions can exist, only one punishment should be applied. The court remands the case to the Court of Criminal Appeals to determine if McKelvey's convictions for burglary and theft stem from the same act or omission, requiring a report back within 56 days following the certificate of judgment. The note clarifies that the grand larceny statute has been repealed and is now included under theft classifications.