Opinion
CR-92-0633.
June 18, 1993.
Appeal from the Circuit Court, Marshall County, William Gullahorn, J.
Clyde Baker, Guntersville, for appellant.
James H. Evans, Atty. Gen., and Norbert Williams, Asst. Atty. Gen., for appellee.
The Appellant, Joe Lee Peppers, was indicted in a three-count indictment, charging two counts of sodomy in the first degree, § 13A-6-63, and one count of sexual abuse in the first degree, § 13A-6-66. He was convicted by a jury on all three counts and was sentenced as a habitual offender with two prior felony convictions to life imprisonment on each sodomy count and to 10 years' imprisonment on the sexual abuse count. The sentences were ordered to run concurrently. He appeals, raising one issue.
Peppers contends that the state failed to prove the two prior felony convictions used to enhance his sentence. We agree. A review of the record reveals that the evidence offered by the state to prove the two prior felony convictions for burglary and larceny failed to show that he was convicted of both crimes.
For this reason, we remand this case to the trial court with instructions to hold a new sentencing hearing to determine whether the appellant has been convicted of one or two prior felonies. If the court determines that Peppers was convicted of two prior felonies, then the sentence should stand. However, if the court finds that Peppers was convicted of only one prior felony then, the court should resentence Peppers accordingly.
The trial court shall take all action directed in sufficient time to permit the circuit clerk to make a proper return to this court at the earliest possible time within 60 days of the release of this opinion.
REMANDED WITH INSTRUCTIONS.
All Judges concur.