Opinion
85-1296.
December 12, 1986.
Rehearing Denied January 9, 1987.
Appeal from the Court of Criminal Appeals, 500 So.2d 1232.
Robert P. Lane of Phillips and Funderburk, Phoenix City, for petitioner.
Charles A. Graddick, Atty. Gen., and William D. Little and Mary Ellen Forehand, Asst. Attys. Gen., for respondent.
Robert Lee Tarver, Jr., the defendant herein, was indicted and convicted under Alabama's 1981 capital punishment statute, §§ 13A-5-39 through 13A-5-59, Code 1975. For the murder of Hugh Sims Kite the defendant received the death penalty pursuant to § 13A-5-40(a)(2), which authorizes that penalty upon a conviction of murder committed during a robbery in the first degree or an attempt thereof. In the majority opinion the Court of Criminal Appeals affirmed the defendant's conviction and sentence. See Tarver v. State, 500 So.2d 1232 (Ala.Cr.App. 1986). The defendant filed a petition for writ of certiorari, which we granted pursuant to Rule 39(c), Ala.R.App.P.
Under part VII of the majority opinion of the Court of Criminal Appeals, it is stated: "The State could have filed a cross-appeal under Rule 28(h), A.R.A.P. but chose not to do so." As correctly pointed out in the special concurrence, Rule 28(h) does not authorize the filing of a cross-appeal. That rule speaks only to the preparation of briefs in cases involving cross appeals.
Having carefully read and considered the record, together with the briefs of counsel, we hold that the opinion of the Court of Criminal Appeals is otherwise correct and that its judgment is due to be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES, BEATTY, ADAMS and STEAGALL, JJ., concur.