Opinion
No. CR-02-0515.
Decided December 2, 2003.
Appeal from Jefferson Circuit Court, (CC-94-2628.62; CC-94-2629.62; CC-94-2630.62).
On Return to Remand
On March 21, 2003, this Court remanded this case to the circuit court with directions for that court to make specific, written findings of fact as to whether the trial court obtained Hill's consent to amend the indictments against him to add the allegation that another person aided him in the robbery, thus allowing Hill to plead guilty to second-degree robbery as a lesser-included offense of the charged offense of first-degree robbery. The circuit court complied with our instructions and on September 2, 2003, entered a written order in which the court made "specific findings of fact relating to each material issue of fact presented," as required by Rule 32.9(d), Ala.R.Crim.P. The court found that Hill consented to the amendment of the first-degree robbery indictments so they charged the lesser-included offense of second-degree robbery. The court found that there was a factual basis for Hill's pleas to second-degree robbery. The record on return to remand also included a transcript of the guilty-plea proceedings, which clearly established that Hill was aided in the robberies by another present at each offense.
Although the record indicates that Hill consented to the amendment of the first-degree robbery indictments so that they charged the lesser-included offense of second-degree robbery, Hill's indictments for first-degree robbery do not allege facts indicating that he was aided in this offense by another participant, and the record fails to establish that the indictments were ever amended to include these facts. See Ex parte Cole, 842 So.2d 605 (Ala. 2002). Therefore, the circuit court did not have jurisdiction to accept Hill's guilty pleas to charges of second-degree robbery, and its denial of his Rule 32 petition was in error. See Toliver v. State, [Ms. CR-02-0665, June 27, 2003] ___ So.2d ___ (Ala.Crim.App. 2003); Childers v. State, [Ms. CR-02-1451, December 2, 2003] ___ So.2d ___ (Ala.Crim.App. 2003).
Based on the foregoing, the judgment of the circuit court denying Hill's Rule 32 petition is reversed, and his case is remanded for that court to vacate his convictions for second-degree robbery.
REVERSED AND REMANDED.
McMillan, P.J., and Cobb, Baschab, and Shaw, JJ., concur. Wise, J., concurs specially, with opinion.
I reluctantly concur with the main opinion's reversal of the circuit court's dismissal of Hill's Rule 32, Ala.R.Crim.P., petition, challenging his convictions and sentences for second-degree robbery, based on the holding of the Alabama Supreme Court in Ex parte Cole, 842 So.2d 605 (Ala. 2002), and this Court's decision following Ex parte Cole, Toliver v. State, [Ms. CR-02-0665, June 27, 2003] ___ So.2d ___ (Ala.Crim.App. 2003). However, I write to urge the Supreme Court to revisit its holding in Ex parte Cole.
This Court is bound by the decisions of the Alabama Supreme Court, see § 12-3-16, Ala. Code 1975, and "is without authority to overrule the decisions of [that] court." Jones v. City of Huntsville, 288 Ala. 242, 244, 259 So.2d 288, 290 (1972). Thus, we have no choice but to reverse the circuit court's dismissal of Hill's Rule 32 petition and remand this case for that court to vacate his convictions for second-degree robbery, despite the fact that the plea colloquy indicated a factual basis for the acceptance of Hill's guilty pleas to second-degree robbery. The plea colloquy clearly indicated that Hill was "aided by another person actually present" at the time the robbery was committed. See § 13A-8-42(a), Ala. Code 1975. Although the colloquy did not specifically indicate that the indictments were being amended to add the fact that Hill was aided in the robberies by other persons, it is clear that the parties were attempting to do so. Nevertheless, based on Ex parte Cole, the court's attempt to comply with the spirit of the law was insufficient, thus mandating reversal of the circuit court's judgment. In my opinion, Ex parte Cole elevates form over substance, and the Court should revisit this decision at its earliest convenience.