Brock v. State

580 So. 2d 1390, 1991 Ala. Crim. App. LEXIS 1093, 1991 WL 116826

• Court: Court of Criminal Appeals of Alabama
• Decided: May 31, 1991
• Docket: 8 Div. 235
• Status: Published

Opinion

ON RETURN TO REMAND

BOWEN, Judge.

The appellant was convicted of first degree assault, second degree assault, and third degree assault based on two separate incidents occurring at Limestone Correctional Facility where the appellant is an inmate. On original submission of this appeal, this Court affirmed the appellant’s convictions for second and third degree assault, but reversed his conviction for assault in the first degree because there was no showing that AIDS could be transmitted through a human bite. Brock v. State, 555 So.2d 285 (Ala.Cr.App.1989). This Court ordered that the appellant’s conviction for assault in the first degree be set aside and that the appellant be adjudged guilty of assault in the third degree and sentenced accordingly. Id. at 288.

On remand, the trial court entered the following order: “Ordered, on Motion of the State of Alabama by and through its District Attorney the indictment is Ordered withdrawn.” In a letter from the district attorney accompanying the return to remand, the district attorney states that “the State waives prosecution by withdrawing ... the indictment as to the count involving the assault. We have in effect waived prosecution or any sentence or incarceration as a result of this case.”

In conjunction with the above, the portion of this appeal with regard to the appellant’s conviction of assault in the first degree in Limestone County CC-88-15 is hereby declared moot. The appellant’s convictions for assault in the second and third degrees in Limestone County CC-88-15 remain affirmed.

OPINION EXTENDED; APPEAL IN CONNECTION WITH FIRST DEGREE ASSAULT DISMISSED AS MOOT.

All Judges concur.