Lynch v. State

640 So. 2d 44, 1993 Ala. Crim. App. LEXIS 1254, 1993 WL 496046

Opinion

PATTERSON, Judge.

The appellant, Edric Maurice Lynch, pleaded guilty to attempting to distribute cocaine. He was sentenced to 10 years’ imprisonment. He was also sentenced to serve an additional five years’ imprisonment under § 13A-12-250, Code of Alabama 1975. The appellant presents two issues. The first issue is whether § 13A-12-250, applies to a conviction for an attempted sale of a controlled substance. The second issue is whether the state sufficiently proved that the attempted sale occurred within a three-mile radius of a school, as required by § 13A-12-250.

We find the appellant’s first issue to be without merit. Even though § 13A-12-250 provides enhancement for an “unlawful sale,” this enhancement provision clearly applies to an attempted sale. Section 13A-12-203(e) mandates that “[a]n attempt to commit a controlled substance crime shall be punished the same as the controlled substance crime attempted.”

In regard to the appellant’s second issue, the record contains no evidence that the attempted sale occurred within a three-mile radius of a school. Accordingly we hold (and the attorney general so admits) that the state failed to prove that the attempted sale occurred within a three-mile radius of a school. Therefore, this cause is remanded with directions for the court to conduct a new sentence hearing. See Ex parte Johnson, 597 So.2d 1305 (Ala.1991). The trial court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 45 days of the release of this opinion.

REMANDED WITH INSTRUCTIONS.

All the Judges concur.