McGee v. StateMcGee v. State
James H. Evans, Atty. Gen., and Robert E. Lusk, Jr., Asst. Atty. Gen., for appellee.
ON RETURN TO REMAND
TAYLOR, Judge.
The appellant, Donnell McGee, was convicted of the unlawful distribution of a cоntrolled substance, a violation of
The triаl court complied with our directions and resentenced the appellant to seven years’ imprisonment, plus five years under
The state has asked that we remand this cause to the trial court so that that court cаn modify its sentence to reflect the original sentence of 12 years and to add the 5-year penalty under
“`On remand, the issues decided by the appellate court become law of the case and the trial court‘s duty is to comply with thе appellate mandate “according to its true intent and meaning, as determined by the directions given by the reviewing court.“’ Walker v. Carolina Mills Lumber Co., 441 So. 2d 980 (Ala. Civ. App. 1983), citing Ex parte Alabama Power Co., 431 So. 2d 151 (Ala. 1983).”
We agree. “The trial judge lost all jurisdiction to modify the original sentence 30 days after its imposition,” when no motion for a new trial was made within that 30-day time period. Massey v. State, 587 So. 2d 448, 449 (Ala. Cr. App. 1991);
REMANDED WITH DIRECTIONS.
All the Judges concur except BOWEN, P.J., who dissents with opiniоn.
BOWEN, Presiding Judge, dissenting.
I dissent from the majority‘s holding that the trial court had no authority to resentеnce the appellant to a reduced term of two years bеfore that term was further enhanced by two additional five-year pеnalties under
The trial court‘s resentencing did not violate the holding of Lynch v. State, 587 So. 2d 306 (Ala. 1991). The court complied with our directions on remand by resentencing the appellant to an additional five-year enhanced penalty for the sale of a controlled substance within three miles of a hоusing project. The court simply reconsidered and reduced the base sentence from seven years to two years. That reconsideration and reduction was permissible.
A trial court has the authority to reconsider and to reduce a defendant‘s sentence upon motion timely made. “For the most part, the applicable stаtutes and rules of court explicitly state or have been construеd to mean that the trial judge may reduce the sentence but may not inсrease the sentence he previously imposed.” 3 W. LaFave & J. Israel, Criminal Procedure § 25.2(е) at 132-33 (1984). On the other hand, “[o]nce a valid sentence has been entered, it cannot, in the absence of fraud or another compelling reason, be altered anytime thereafter so as to increase the severity of the sentence.” Ex parte Tice, 475 So. 2d 590, 591-92 (Ala. 1984) (emphasis added). See also Wood v. State, 602 So. 2d 1195 (Ala. Cr. App. 1992). See generally Rice v. Simpson, 274 F. Supp. 116