564 So. 2d 859 | Ala. Crim. App. | 1988
Lead Opinion
ON REMAND FROM THE ALABAMA SUPREME COURT
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 Bohan-non 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 of 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.
ON RETURN TO REMAND
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
OPINION EXTENDED; AFFIRMED.
All Judges concur.
Lead Opinion
In Ex parte Bohannon,
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, §
REVERSED AND REMANDED WITH INSTRUCTIONS.
All Judges concur.
Addendum
Appellant, Donald Ray Bohannon, was convicted of trafficking in marijuana, in violation of §
Following the procedure approved in Edwards v. State,
OPINION EXTENDED; AFFIRMED.
All Judges concur.