Lynch v. State

Mar 4, 1994
CR-92-0957
Reporters:
, ,
Before:
Patterson

On Return to Remand

PATTERSON, Judge.

We remanded this cause to the trial court with instructions to conduct a new sentencing hearing. 640 So.2d 44. On original submission, we determined that the trial court had enhanced the appellant’s sentence by an additional five years’ imprisonment pursuant to § 13A-12-250, Code of Alabama 1975, although the record contained no evidence that the sale of the controlled substance occurred within a three-mile radius of a school. The trial court complied with our instructions, conducted a new sentencing hearing, resen-teneed the appellant, and has filed a return with this court.

The return shows that the state presented evidence at the new sentencing hearing that the sale occurred within a three-mile radius of three schools. The trial court then found that the sale occurred within a three-mile radius of a school. This finding is fully supported by the record.

On resentencing, the trial court sentenced the appellant to 10 years’ imprisonment, which sentence was split, with the appellant to serve two years’ imprisonment and the remainder on probation. In addition, the trial court enhanced the sentence by imposing an additional five years’ imprisonment under § 13A-12-250, and ordered that sentence to be served consecutively with the ten years’ imprisonment imposed for the conviction for attempting to distribute cocaine.

The sentence being in order and supported by the record, the conviction and sentence in this case are due to be affirmed.

AFFIRMED.

All Judges concur.