Opinion
No. CR-00-1573.
Decided October 26, 2001. Rehearing Denied November 30, 2001. Certiorari Denied February 22, 2002.
Appeal from Houston Circuit Court (CC-00-335; CC-00-494, CC-01-337).
Allen Kenneth Mitchell, Dothan, for appellant.
Bill Pryor, atty. gen., and Daniel W. Madison, deputy atty. gen., for appellee.
AFFIRMED BY UNPUBLISHED MEMORANDUM.
Baschab and Wise, JJ., concur.
Cobb, J., concurs in part and dissents in part, with opinion.
Shaw, J., concurs in part and dissents in part, with opinion.
I agree with the unpublished memorandum except insofar as it affirms the judgment on the issue addressing the appellant's Apprendi v. New Jersey, 530 U.S. 466 (2000) claim. I believe that the appellant's challenge to his sentence enhancement is entitled to further review. See my special writing concurring in part in Judge Shaw's special writing as to this issue in Poole v. State, [Ms. CR-99-1200, August 31, 2001] ___ So.2d ___, ___ (Ala.Crim.App. 2001). As to those points on which I disagree with Judge Shaw, see my special writing in Poole, ___ So.2d at ___.
I concur in that part of the unpublished memorandum affirming Swain's conviction; however, I would reverse his sentence and remand the case for resentencing in accordance with my special writing in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).