Opinion
5 Div. 204.
October 29, 1974.
Appeal from the Circuit Court, Lee County, L. J. Tyner, J.
James T. Gullage, Opelika, for appellant.
A person charged with a crime which was committed in his minority was not disposed of in juvenile court and which involves moral turpitude or is subject to a sentence of commitment for one year or more shall be investigated and examined by the court to determine whether he should be tried as a youthful offender. Section 266(1), Title 15, Code of Alabama, 1940, as amended and recompiled; Flippo v. State, 49 Ala. App. 138, 269 So.2d 155; Morgan v. State, 291 Ala. 764, 287 So.2d 914.
William J. Baxley, Atty. Gen., and J. Donald Reynolds, Sp. Asst. Atty. Gen., for the State.
It was not error to reversal for trial judge not to order formal investigation of defendant by probation officers prior to the Court's rejection of defendant's request to be tried under the Youthful Offender Act. Section 266(1) Title 15, Code of Ala., 1940, as amended and recompiled; Flippo v. State, 49 Ala. App. 138, 269 So.2d 155; Morgan v. State, 291 Ala. 764, 287 So.2d 914; Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855.
Appellant was convicted of selling marihuana. The jury declined to assess a fine and the court sentenced him to a term of fifteen years in the penitentiary.
He was seventeen years of age at the time of the alleged commission of the offense and at the time of his arrest. Prior to trial he filed a motion to be tried under the Youthful Offenders Act (Title 15, Section 266(1), Code of Alabama 1940, Supplement) and agreed to waive a jury trial and plead guilty. This motion was summarily overruled in the face of the mandatory provisions of said Act. Morgan v. State, 291 Ala. 764, 287 So.2d 914.
We are of the opinion that this case must be remanded to the trial court to refer this motion to a probation officer for investigation. Upon the filing of such report, the court must examine appellant at hearing and determine whether in its discretion appellant should be tried as a youthful offender.
The trial court is further directed that the hearing be held speedily, and that a full record be made together with the court's determination. A transcript of these proceedings, properly certified by the clerk, shall be forwarded to this court for review. Seibold v. State, 287 Ala. 549, 253 So.2d 302.
Remanded with directions.
All the Judges concur.