HUDMON v. STATE, 850 So.2d 365 (Ala.Crim.App. 2001)

Thomas Hudmon v. State of Alabama.

No. CR-00-0959.Court of Criminal Appeals of Alabama.
Decided September 28, 2001. Rehearing Denied November 21, 2001. Certiorari Denied November 8, 2002. Alabama Supreme Court 1010544.

Appeal from Chambers Circuit Court (CC-00-252).

Donald R. Cleveland, West Point, Georgia, for appellant.

William H. Pryor, Jr., atty. gen., and Cedric B. Colvin, asst. atty. gen., for appellee.

PER CURIAM.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMillan, P.J., and Wise, J., concur; Baschab, J., concurs in the result; Cobb, J., concurs in part and dissents in part, with opinion, in which Shaw, J., joins.

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

Page 366

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 398. 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.