BOHANNON v. STATE, 564 So.2d 859 (Ala.Crim.App. 1988)

564 So.2d 859

Donald Ray BOHANNON v. STATE.

1 Div. 297.Court of Criminal Appeals of Alabama.
October 11, 1988. Rehearing Denied November 10, 1988. Certiorari Denied January 27, 1989 Alabama Supreme Court 88-261. On Return to Remand October 13, 1989. Rehearing Denied November 17, 1989. Certiorari Quashed August 17, 1990 Alabama Supreme Court 89-337.

Appeal from Mobile Circuit Court.

James M. Byrd, Mobile, for appellant.

Don Siegelman, Atty. Gen. and Beatrice E. Oliver, Asst. Atty. Gen., for appellee.

ON REMAND FROM THE ALABAMA SUPREME COURT
PATTERSON, Judge.

In Ex parte Bohannon, 564 So.2d 854 (Ala. 1988), our supreme court reversed this court’s judgment affirming Bohannon’s conviction for possessing in excess of 2.2 pounds of marijuana, in violation of § 20-2-80, Code of Alabama 1975. This reversal was based on the court’s finding that the state failed to prove that Bohannon possessed in excess of 2.2 pounds of marijuana, as the term is defined in § 20-2-2(15).

Pursuant to Ex parte Bohannon, we reverse Bohannon’s conviction for trafficking. However, we find that the state clearly proved each and every element of possession of marijuana, § 20-2-70, which is a lesser included offense of the crime charged. Thus, we are authorized to apply the doctrine o Edwards v. State, 452 So.2d 506 (Ala.Cr.App. 1983), aff’d, 452 So.2d 508 (Ala. 1984). See also Borden v. State, 523 So.2d 508
(Ala.Cr.App. 1988). Accordingly, we reverse Bohannon’s conviction for trafficking, but we remand with instructions that a judgment of guilty be entered for the lesser included offense of possession of marijuana and for proper resentencing. Due return should be filed with this court showing the action taking by the trial court.

REVERSED AND REMANDED WITH INSTRUCTIONS.

All Judges concur.

ON RETURN TO REMAND
PATTERSON, Judge.

Appellant, Donald Ray Bohannon, was convicted of trafficking in marijuana, in violation of § 20-2-80, Code of Alabama 1975, and was sentenced to ten years’ imprisonment and was fined $25,000. We affirmed without opinion. 515 So.2d 153, 519 So.2d 1380. The Alabama Supreme Court granted appellant’s petition for writ of certiorari and reversed his conviction, holding that the state had failed to prove that he possessed more than 2.2 pounds of marijuana, an essential element of trafficking under the statute. §§ 20-2-2(15) and -80. On remand from the Alabama Supreme Court, we reversed the conviction; however, we found that the state had clearly proved each element of the offense of possession of marijuana, § 20-2-70, which is a lesser included offense of the crime of trafficking.

Following the procedure approved in Edwards v. State, 452 So.2d 506 (Ala.Cr.App. 1983), aff’d, 452 So.2d 508 (Ala. 1984), we

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reversed the conviction for trafficking in marijuana and remanded the case to the trial court with instructions that it enter a judgment of guilty of possession of marijuana and sentence appellant accordingly. See Pack v. State, 461 So.2d 910 (Ala.Cr.App. 1984). On February 23, 1989, the trial court adjudged appellant guilty of possession of marijuana, sentenced him to ten years’ imprisonment, and fined him $25,000. The return to remand reflects full compliance with our instructions, and the judgment of the trial court finding appellant guilty of possession of marijuana, sentencing him to the penitentiary for ten years, and fining him $25,000 is due to be, and it is hereby, affirmed.

OPINION EXTENDED; AFFIRMED.

All Judges concur.