( See Doc. 1, at 6-7 of the Form Complaint) Holley's first-degree robbery conviction and sentence were affirmed on direct appeal, Holley v. State, 397 So.2d 211 (Ala.Crim.App.), writ denied Ex parte Holley, 397 So.2d 217 (Ala. 1981), and, as well, survived the prisoner's federal habeas corpus challenge, Holley v. Smith, 792 F.2d 1046 (11th Cir.), reh'g denied, 803 F.2d 1185 (11th Cir. 1986), cert. denied, 481 U.S. 1020, 107 S.Ct. 1902, 95 L.Ed.2d 508 (1987). 2.
Ex parte Glover, 508 So.2d 218 (Ala. 1987). Although pre-trial notice of the State's intent to proceed under the habitual offender act is neither required by the constitution, see Oyler v. Boles, 368 U.S. 448, 452, 82 S.Ct. 501, 504, 7 L.Ed.2d 446 (1962), nor mandated by our statute and procedural rules, see Holley v. State, 397 So.2d 211, 213 (Ala.Cr.App.), cert. denied, Ex parte Holley, 397 So.2d 217 (Ala. 1981), the lack of notice is one factor indicating that a defendant's testimony conceding his prior conviction, on cross-examination, does not constitute a solemn judicial admission or formal waiver of the State's proof at sentencing. See State v. Shepard, 247 Iowa 258, 73 N.W.2d 69 (1955), overruled on other grounds, State v. Jensen, 189 N.W.2d 919, 923 (Iowa 1971) (where prior convictions were alleged in the indictment, defendant's admission on cross-examination relieved the State of the burden of proving them); Laday v. State, 685 S.W.2d 651 (Tex.Cr.App. 1985) (same).
Holley left the area of the tools and was apparently trying to convince the victims that he had not stolen when he was 'pursued' and 'accosted' by not only the victim, Blalock Sledge, but also a number of his friends. It was only then that Holley pulled out his small pocket knife; warned them 'Don't come up on me or I'll cut the hell out of you'; started to wave the knife and turned and ran away. (TR. 11, 13, 26, 27, 32, 43, 71, 72, Holley v. State, supra, 397 So.2d at 612.6 Like in the cases of Harris and Casher, the tool box had been abandoned at the time the threat of force was made.
A Written notice given to the defendant two days prior to his sentencing that the State intended to invoke the provisions of the habitual felony offender statute was reasonable in form and time under A.R.Crim.P.Temp. 6 (b)(3)(ii). Hollander v. State, 418 So.2d 970 (Ala.Cr.App. 1982); Holsclaw v. State, 406 So.2d 1019 (Ala.Cr.App.), cert. denied, Ex parte Holsclaw, 406 So.2d 1020 (Ala. 1981); Holley v. State, 397 So.2d 211 (Ala.Cr.App.), cert. denied, Ex parte Holley, 397 So.2d 217 (Ala. 1981). B
The defendant was informed that the State intended to invoke the Habitual Felony Offender Act at the time of the jury's verdict, seventeen days before the sentencing hearing. This constituted reasonable notice. Holley v. State, 397 So.2d 211 (Ala.Cr.App.), cert. denied, Ex parte Holley, 397 So.2d 217 (Ala. 1981); A.R. Crim.P.Temp. 6 (b)(3)(ii). The judgment of the circuit court is affirmed.