Opinion
No. CR-00-0286.
Decided September 28, 2001. Rehearing Denied November 2, 2001. Certiorari Denied February 14, 2003. Alabama Supreme Court 1010373.
Appeal from Jefferson Circuit Court (CC-00-235).
James C. McInturff, Birmingham, for appellant.
William H. Pryor, Jr., atty. gen., and G. Ward Beeson III, asst. atty. gen., for appellee.
AFFIRMED BY UNPUBLISHED MEMORANDUM. Baschab and Wise, JJ., concur. Cobb, J., dissents, with opinion, which Shaw, J., joins.
I dissent based on Judge Shaw's special writing in Poole v. State, 846 So.2d 370 (Ala.Crim.App. 2001). As to those points of law on which I disagree with Judge Shaw, see my special writing in Poole, supra. The trial court erred when it permitted the State to amend the indictment, because the amendment charged a different offense. Rule 13.5(a), Ala.R.Crim.P. The judgment in this cause should be reversed, and the trial court should strike the §§ 13A-12-250 and -270 sentence enhancements which were added by the improper amendment. Keith should receive only the 20-year sentence imposed for the lesser-included offense of distribution. Accordingly, I dissent.