Brannon v. State, 4 Div. 853

• Decision Date: 14 April 1989
• Docket Number: 4 Div. 853
• Citation: 547 So.2d 69
• Parties: Gilbert BRANNON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 69

547 So.2d 69

Gilbert BRANNON v. STATE.

4 Div. 853.

Court of Criminal Appeals of Alabama.

April 14, 1989.

On Return to Remand June 16, 1989.

Appeal from Houston Circuit Court; J. Ronald Storey, Judge.

Douglas M. Bates, Dothan, for appellant.

Don Siegelman, Atty. Gen., and Mary Ellen Forehand, Asst. Atty. Gen., for appellee.

AFTER REMANDMENT

BOWEN, Judge.

This Court affirmed the defendant's conviction for the unlawful possession of phentermine hydrochloride without published opinion. Brannon v. State, 524 So.2d 387 (1988). The only issue raised was whether or not the trial court ascertained the factual basis for the crime in accepting the defendant's guilty plea.

On certiorari, the Alabama Supreme Court reversed and held that the defendant was incorrectly sentenced. Ex parte Brannon, 547 So.2d 68 (Ala.1989). Therefore, as directed in Ex parte Brannon, this cause is remanded to the circuit court for a

                new sentencing proceeding.  The defendant should be sentenced under the sentencing provisions of Alabama's Controlled Substances Act and not under the Habitual Felony Offender Act.   Ex parte Chambers, 522 So.2d 313 (Ala.1987).
                

REMANDED WITH DIRECTIONS.

All Judges concur.

ON RETURN TO REMAND

BOWEN, Judge.

On remand, a new sentencing hearing was held. The improper sentence of twenty years' imprisonment was set aside as ordered in Ex parte Brannon, 547 So.2d 68 (Ala.1989), and the defendant was properly sentenced to ten years' imprisonment.

The judgment of the circuit court is affirmed.

OPINION EXTENDED;

AFFIRMED.

All Judges concur.