Opinion
No. CR-00-2202.
This case was originally published at 828 So.2d 965; the note from the reporter of decisions appearing there reported that on April 11, 2002, the appeal had been dismissed due to the death of the appellant. However, on October 16, 2002, after the case had been released for publication, the Court of Criminal Appeals set aside the order of dismissal and reinstated the case. The entry on that Court's docket sheet indicated that it was restoring the case to its active docket "after receiving notice that it was the appellant's brother who died recently and not the appellant."
Appeal from Montgomery Circuit Court (CC-2001-5370); Eugene W. Reese, Judge.
Robert T. Turner, Montgomery, for appellant.
Submitted on appellant's brief only.
The appellant, Dedrick Freeman, was found guilty of unlawful distribution of a controlled substance. The trial court sentenced him to three years' imprisonment, suspended the sentence, and imposed two additional five-year sentence enhancements because the offense occurred within three miles of a school and a public housing project. See §§ 13A-12-250 and -270 Ala.Code. 1975. The court also ordered the appellant to pay court costs, attorney's fees, a victim's compensation assessment and a $2,000 penalty under the Demand Reduction Assessment Act.
The appellant's appointed counsel has filed an Anders v. Calfornia, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) brief, in which he states that there are no meritorious issues that can be raised on behalf of the appellant. The appellant has filed no points or issues that can be raised on behalf of the appellant. The appellant has filed no points or issues for this court to consider, and a review of the record of the appellant's conviction. However, it appears that an error may have occurred during the appellant's sentencing.
The Demand Reduction Assessment Act, § 13A-12-281(a), prescribes a $1,000 penalty for first offenders and a $2,000 penalty for second and subsequent offenders. At the appellant's sentencing hearing, the prosecutor informed the trial court that the fine "should be two thousand dollars rather than one because of the prior POM II [sic]." The Demand Reduction Act applies to § 13A-12-213, Ala.Code. 1975, possession of marijuana in the first degree, but it does not apply to § 13A-12-214, possession of marijuana in the second degree.
Due to the apparent inconsistency between the appellant's prior offense and the penalty imposed by the trial court, we must remand this cause for clarification and, if necessary, for a correction of the penalty. A return should be filed with this court within 42 days of the release of this opinion.
Note from the reporter of decisions: This case was originally published at 828 So.2d 965; the note from the reporter of decisions appearing there reported that on April 11, 2002, the appeal had been dismissed due to the death of the appellant. However, on October 16, 2002, after the case had been released for publication, the Court of Criminal Appeals set aside the order of dismissal and reinstated the case. The entry on that Court's docket sheet indicated that it was restoring the case to its active docket "after receiving notice that it was the appellant's brother who died recently and not the appellant." On January 7, 2003, on return to remand, that Court affirmed, without opinion.
BASCHAB and WISE, JJ., concur. SHAW, J., concurs in part and dissents in part, with opinion, and COBB, J., joins.
I agree that this case needs to be remanded for clarification and for possible correction of the fine imposed. However, I would also reverse Dedrick Freeman's sentence and remand the case 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).