Opinion
No. CR-00-0235.
Decided October 26, 2001.
Appeal from Madison Circuit Court (CC-00-1216).
Robert Chandler Davis, Gadsden, for appellant.
Bill Pryor, atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for appellee.
AFFIRMED BY UNPUBLISHED MEMORANDUM.
McMillan, P.J., and Baschab and Wise, JJ., concur. Cobb and Shaw, JJ., concur in part and dissent in part, with opinions.
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 sentence 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.
I concur in that part of the unpublished memorandum affirming Travian DeBois Ray's conviction; however, I would reverse his sentence and remand for resentencing in accordance with my special writing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).