Green v. State, 602 So. 2d 457

Green v. State

602 So. 2d 457 | Ala. Crim. App. | 1992

APPLICATION FOR REHEARING

The opinion issued by this Court on return to remand is hereby withdrawn. The application for rehearing filed by the appellant is granted. *458

On original submission, this Court remanded this cause to the circuit court for proper sentencing in accordance with Ala. Code 1975, § 13A-12-250. Green v. State,586 So.2d 54 (Ala.Cr.App. 1991). On remand, the trial court sentenced the appellant to "a further term of five (5) years in the state penitentiary under the School Vicinity Enhancement Act in addition to the sentence heretofore imposed."

The appellant was convicted of two counts of the unlawful sale of cocaine, with each sale occurring on a different date. Section 13A-12-250, as in effect at the time of the instant offenses, imposes an additional five-year penalty foreach unlawful sale of a controlled substance within a one-mile radius of a school campus. On remand, the trial court imposed only one additional five-year penalty, even though the appellant had two separate convictions and each conviction occurred within a one-mile radius of a school.

Therefore, this cause is again remanded with directions that the trial court sentence the appellant to an additional term of five years' imprisonment pursuant to § 13A-12-250 in addition to the five-year sentence originally imposed under § 13A-12-211 for each of the appellant's two convictions for the unlawful sale of cocaine in Morgan Circuit Court Case Number CC-89-793. Unless specifically ordered otherwise by the trial court, the sentences shall run consecutively. Ala. Code 1975, § 14-4-9; Rule 11(a), A.R. Crim. P. Temp. (now Rule 26.12, A.R. Crim. P.). Return to this Court shall be made within 42 days from the date of this opinion.

APPLICATION FOR REHEARING GRANTED;

EXTENDED OPINION ON RETURN TO REMAND WITHDRAWN;

OPINION SUBSTITUTED;

REMANDED WITH DIRECTIONS.

All Judges concur.