Box v. State

419 So. 2d 604, 1981 Ala. Crim. App. LEXIS 2506

Opinions

LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction and sentence for the possession of a controlled substance in violation of the Alabama Uniform Controlled Substances Act, Code of Ala. 1975, § 20-2-1 et seq. The indictment contained two counts; the first count charged possession of cocaine, and the second count charged possession of marijuana.

By consent of the defendant, the case was tried by the court without the intervention of a jury. After finding the defendant guilty and conducting a sentencing hearing, the court fixed defendant’s punishment at imprisonment for four years and sentenced him accordingly.

The record of the judgment of conviction is in pertinent part as follows:

“. .. The Court finds the defendant guilty as charged in the indictment.

“It is therefore considered by the Court, and it is the judgment of the Court that said defendant is adjudged guilty as charged in the indictment.”

Appellant presents only two contentions for a reversal. One of them pertains exclusively to the first count of the indictment, and the other pertains exclusively to the second count.

Under the circumstances stated, we should remand the case to the trial court for clarification of the question whether defendant was adjudged guilty under both counts of the indictment and, if not, whether he was adjudged guilty of possession of cocaine, as charged in the first count, or, on the other hand, whether he was adjudged guilty of possession of marijuana, as charged in the second count.

The case is remanded to the trial court with directions that it amend nunc pro tunc its record of its judgment of conviction as hereinabove quoted by inserting therein appropriate language to constitute the clarification desired. Upon the trial court’s return to this remandment, each party will be allowed fifteen days within which to file any additional brief and the opposing party ten days within which to file a reply brief.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

REMANDED WITH DIRECTIONS.

All the Judges concur.