Lynch v. State

Dec 3, 1993
CR-92-0957
Reporters:
, ,
Before:
Patterson
PATTERSON, Judge.

The appellant, Edric Maurice Lynch, pleaded guilty to attempting to distribute cocaine. He was sentenced to 10 years’ imprisonment. He was also sentenced to ‍​‌‌‌‌​​​​​​‌​‌​‌‌​‌​‌‌​​​‌‌​‌‌​​​‌​​‌‌​‌​‌​‌‌​​​​​‌​​​​​​​‌​​‌‌‌‌​‌‌‌‌​​‌‌​‌​‌​​‌​‌‌​​​​​‌‌‌​‌​​‍serve an additional five years’ imprisonment under § 13A-12-250, Code of Alabama 1975. The appellant presents two issues. The first issue is whether § 13A-12-250, applies to a conviction for an attempted sale of a controlled substance. The second issue is whether the state sufficiently proved that the attempted sale occurred within ‍​‌‌‌‌​​​​​​‌​‌​‌‌​‌​‌‌​​​‌‌​‌‌​​​‌​​‌‌​‌​‌​‌‌​​​​​‌​​​​​​​‌​​‌‌‌‌​‌‌‌‌​​‌‌​‌​‌​​‌​‌‌​​​​​‌‌‌​‌​​‍a three-mile radius of a school, as required by § 13A-12-250.

We find the appellant’s first issue to be without merit. Even though § 13A-12-250 provides enhancement for an “unlawful sale,” this enhancement provision clearly applies to an attempted sale. Section 13A-12-203(e) mandates that “[a]n attempt to commit a controlled substance crime shall be ‍​‌‌‌‌​​​​​​‌​‌​‌‌​‌​‌‌​​​‌‌​‌‌​​​‌​​‌‌​‌​‌​‌‌​​​​​‌​​​​​​​‌​​‌‌‌‌​‌‌‌‌​​‌‌​‌​‌​​‌​‌‌​​​​​‌‌‌​‌​​‍punished the same as the controlled substance crime attempted.”

In regard to the appellant’s second issue, the record contains no evidence that the attempted sale occurred within a three-mile radius of a school. Accordingly we hold (and the attorney general so admits) that the state failed to prove that ‍​‌‌‌‌​​​​​​‌​‌​‌‌​‌​‌‌​​​‌‌​‌‌​​​‌​​‌‌​‌​‌​‌‌​​​​​‌​​​​​​​‌​​‌‌‌‌​‌‌‌‌​​‌‌​‌​‌​​‌​‌‌​​​​​‌‌‌​‌​​‍the attempted sale occurred within a three-mile radius of a school. Therefore, this cause is remanded with directions for the court to conduct a new sentence hearing. See Ex parte Johnson, 597 So.2d 1305 (Ala.1991). The trial court shall take all necessary action to see that the circuit clerk makes due ‍​‌‌‌‌​​​​​​‌​‌​‌‌​‌​‌‌​​​‌‌​‌‌​​​‌​​‌‌​‌​‌​‌‌​​​​​‌​​​​​​​‌​​‌‌‌‌​‌‌‌‌​​‌‌​‌​‌​​‌​‌‌​​​​​‌‌‌​‌​​‍return to this court at the earliest possible time and within 45 days of the release of this opinion.

REMANDED WITH INSTRUCTIONS.

All the Judges concur.