Opinion
No. CR-00-1790.
Decided October 26, 2001.
Appeal from Butler Circuit Court (CC-01-94).
C. Franklin Snowden III, Montgomery, for appellant.
Bill Pryor. atty. gen., and Melissa K. Atwood, asst. atty. gen., for appellee.
APPEAL DISMISSED BY UNPUBLISHED MEMORANDUM.
McMillan, P.J., concurs. Baschab, J., concurs in the result. Cobb and Shaw, JJ., dissent, each with opinion.
I respectfully dissent from dismissing the appellant's appeal. Rather, I would reverse his sentence and remand the case for resentencing in accordance with Judge Shaw's special writing in Poole v. State, [Ms. CR-99-1200, August 31, 2001] ___ So.2d ___, ___ (Ala.Crim.App. 2001), with which I concurred as to this issue. As to those points on which I disagree with Judge Shaw, see my special writing in Poole, ___ So.2d at ___. I believe that these sentence enhancements should have been charged in the information and proved to the jury beyond a reasonable doubt, and that the failure to do so is a jurisdictional defect that this Court should notice and remedy on appeal.
I believe that the sentence enhancements should have been referred to in the information, and that the omission of the enhancements is a jurisdictional defect this Court should notice and remedy on appeal. Therefore, because a jurisdictional defect is not subject to waiver, seeRoss v. State, 529 So.2d 1074 (Ala.Crim.App. 1988), I would not dismiss this appeal. Rather, I would affirm Larry Pate's conviction, reverse his sentence, and remand the case for resentencing in accordance with Rule 13.2, Ala.R.Crim.P., and my special writing in Poole v. State, [Ms. CR-99-1200, August 31, 2001] ___ So.2d ___, ___ (Ala.Crim.App. 2001) (Shaw, J., concurring in the result).