Alabama Attorney General Opinion 1979-0172

CHARLES A. GRADDICK ATTORNEY GENERAL STATEOFALABAMA MAY 24 1979 OFFICE *OF THE ATTORNEY GENERAL 179- 001/7& #10 LEE L. HALE D EEEEE ATTORNEY GE E ... WILLIAM M. SERUMS. al EXECUTIVE ASSISTANT WALTER S. TURNER CHIEF ASSISTANT ATTORNEY GENERAL JANIE NOBLES ADMINISTRATIVE ASSI Honorable James Earl Johnson Sheriff, Chilton County Clanton, Alabama 35045 Sheriffs - Pistols Sheriff cannot return pistol to one charged with carrying a pistol without a license upon his plea of guilty. Must proceed as set out in Code of Alabama 1975, Section 13-6-164. Dear Sheriff Johnson: Acknowledgement is made of your request for an opinion from the Attorney General regarding confiscated guns. You specifically asked: -"When the Sheriff's' Department makes a case for carrying pistol without perMit, there is a plea of guilty filed, and the case is paid off, what authority does the Sheriff have as far as releasing the pistol' hack to the defendant in the case?" Code of Alahama-1975,-Section 13-6-4644 speaks-to-the-question presented here. It states that when a sheriff arrests a person charged with carrying a pistol without .a license as defined in Code of Alabama 1975, Section 13-6-153, the sheriff of the county -ADMINISTRATIVE iluiroma 54 NORTH UNION MONTGOMERY, ISO AREA Iasi. noi•isse Honorable James Earl Johnson Page Two where the arrest is made keeps the weapon in a safe place until after the final conviction on the charge. Within five days after the conviction, the sheriff reports the seizure and detention of the pistol to the district attorney of that county. The district attorney then petitions the circuit court to declare the weapon to be a contraband to be lorfeited to the State for destruction or to be used exclusively by the sheriff for law enforcement in the county. A plea of guilty is itself a conviction, Boykin v. Alabama, 395 U.S. 238, 23 L. Ed 2d.274, 89 S. Ct. 1709. Therefore, there is no authority for a sheriff to release a pistol back to an accused who has pled guilty to the charge of carrying a pistol without a license. The sheriff must proceed to dispose of the (jun as set out in Section 13-6-164, supra. If our office can be of further assistance, please do not hesitate to call on us. Sincerely, CHARLES A. GRADDICK Attorney General By LYNDA F. KNIGHT Assistant Attorney General LEK;mj