Opinion
No. CR-00-0380.
Decided September 28, 2001. Rehearing Denied November 2, 2001. Certiorari Denied February 14, 2003. Alabama Supreme Court 1010375.
Appeal from Jefferson Circuit Court (CC-2000-3606).
J. Derek Drennan, Birmingham, for appellant.
William H. Pryor, Jr., atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
AFFIRMED BY UNPUBLISHED MEMORANDUM.
McMillan, P.J., and Baschab and Wise, JJ., concur; Cobb, J., concurs in part and dissents in part, with opinion, in which Shaw, J., joins.
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, 846 So.2d 370 (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, 846 So.2d 370. 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 do so is a jurisdictional defect which this Court should notice and remedy on appeal. Therefore, as to the sentencing issue, I dissent.