Opinion
No. CR-05-0422.
Decided September 29, 2006.
Appeal from Etowah Circuit Court (CC-00-1213.60)
On Application for Rehearing.
The appellant, Carlous Cobb, was indicted for first-degree robbery. On April 9, 2001, pursuant to a negotiated agreement, he pled guilty to second-degree robbery. The trial court sentenced him, as a habitual offender, to serve a term of life in prison.See § 13A-5-9(c), Ala. Code 1975. He did not appeal his conviction. On May 6, 2005, the appellant filed a Rule 32 petition, challenging his conviction. Without requiring a response from the State, the circuit court summarily denied the petition, and the appellant appealed the denial to this court.
In his brief to this court, the appellant argued that the trial court did not have jurisdiction to render a judgment and impose a sentence in his case. Specifically, he contended that the trial court did not have jurisdiction to accept his guilty plea for the offense of second-degree robbery because the indictment did not allege that he was aided by another person who was actually present and because the indictment was not properly amended to allege that he was aided by another person who was actually present. On March 24, 2006, we remanded this case to the circuit court with instructions that that court make specific, written findings as to whether the indictment against the appellant was amended to add the allegation that another person aided him in the robbery. See Cobb v. State, [Ms. CR-05-0422, March 24, 2006] ___ So. 2d ___ (Ala.Crim.App. 2006). In our opinion on return to remand, we explained:
"The transcript of the guilty plea proceedings indicates that the first-degree robbery charge was amended by agreement to second-degree robbery and that the appellant agreed that another person was involved in the robbery. However, the transcript does not indicate that the trial court specifically amended the indictment to include the allegation that the appellant was aided by another person who was actually present."
Cobb v. State, [Ms. CR-05-0422, June 30, 2006] ___ So. 2d ___, ___ (Ala.Crim.App. 2006) (opinion on return to remand). Relying on Ex parte Cole, 842 So. 2d 605 (Ala. 2002), we concluded:
"Because the indictment in this case was not amended to add the fact that the appellant was aided by another person who was actually present, the trial court did not have jurisdiction to accept his guilty plea to second-degree robbery. Therefore, we reverse the circuit court's judgment and remand this case for the circuit court to set aside the appellant's conviction and sentence for second-degree robbery."
___ So. 2d at ___.
The State has filed an application for a rehearing in which it argues that our decision on return to remand is in direct conflict with the Alabama Supreme Court's opinion in Ex parte Seymour, [Ms. 1050597, June 30, 2006] ___ So. 2d ___ (Ala. 2006). For the reasons set forth in Taylor v. State, [Ms. CR-05-1132, August 11, 2006] ___ So. 2d ___ (Ala.Crim.App. 2006), we agree.
In Taylor, we analyzed the effect of Ex parte Seymour onEx parte Cole as follows:
"Until recently, a trial court lacked subject-matter jurisdiction to adjudicate a defendant guilty of a lesser-included offense based on an amended indictment if the original indictment charging the offense omitted an element of the lesser-included offense. Ex parte Cole, 842 So. 2d 605 (Ala. 2002). However, on June 30, 2006, the Alabama Supreme Court decided the matter of Ex parte Seymour, [Ms. 1050597, June 30, 2006] ___ So. 2d ___ (Ala. 2006). In Seymour, the Supreme Court overruled Ex parte Lewis, 811 So. 2d 485 (Ala. 2001), Ash v. State, 843 So. 2d 213 (Ala. 2002), `and other Alabama cases [that] have held to the contrary.' Seymour, ___ So. 2d at ___. In doing so, the Court opined:
"`The validity of Seymour's indictment is irrelevant to whether the circuit court had jurisdiction over the subject matter of this case. A defect in an indictment may be error, see Rule 15.2(d), Ala. R. Crim. P. — or even constitutional error, see Ala. Const., Art. I, § 8 — but the defect does not divest the circuit court of the power to try the case. A defendant who challenges a defective indictment is thus subject to the same preclusive bars as one who challenges any other nonjurisdictional error, such as illegal seizure or a violation of the Confrontation Clause.'
"___ So. 2d at ___. Although the Supreme Court did not specifically list Ex parte Cole, supra, as one of the cases it was overruling in Seymour, it also overruled `other Alabama cases [that] have held to the contrary.' ___ So. 2d at ___. Therefore, we read Seymour to overrule Ex parte Cole.
"Taylor's sole argument on appeal is that the indictment is defective for failing to include an element of the lesser-included offense to which he pleaded guilty. He further argues that the defect divests the trial court of subject-matter jurisdiction. However, the Supreme Court held in Ex parte Seymour `that a circuit court has subject-matter jurisdiction over a felony prosecution, even if that prosecution is based on a defective indictment.' ___ So. 2d at ___. Taylor is therefore not entitled to any relief."
___ So. 2d at ___ (footnote omitted).
In light of the Alabama Supreme Court's decision in Ex parte Seymour, which was released on the same day we released our opinion on return to remand in this case, and this court's decision in Taylor, we conclude that the trial court did have jurisdiction to accept the appellant's guilty plea to second-degree robbery. Accordingly, we grant the State's application for a rehearing and affirm the circuit court's judgment denying the appellant's Rule 32 petition.
APPLICATION FOR REHEARING GRANTED; AFFIRMED.
McMillan, P.J., and Cobb, Shaw, and Wise, JJ., concur.