Green v. State

Full title: Kenneth Ray Green v. State

Court: Court of Criminal Appeals of Alabama

Date published: Oct 26, 2001

819 So. 2d 121 (Ala. Crim. App. 2001)

Opinion

No. CR-00-1510.

Decided October 26, 2001.

Appeal from Etowah Circuit Court (CC-98-160.01).

McMILLAN, Presiding Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.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.

COBB, Judge, concurring in part and dissenting in part.

I concur in affirming the appellant's conviction; however, 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 must be charged in the indictment and proved to the jury beyond a reasonable doubt, and that the failure to charge these enhancements in the indictment is a jurisdictional defect that this Court should notice and remedy on appeal. Therefore, as to the sentencing issue, I dissent.

SHAW, Judge, concurring in part and dissenting in part.

I concur in that part of the unpublished memorandum affirming Kenneth Ray Green's conviction; however, I would reverse his sentence and remand the case for resentencing in accordance with my special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).