McCurley v. State

390 So. 2d 31, 1980 Ala. Crim. App. LEXIS 1457

Opinion

TYSON, Judge.

On August 8,1980, the Supreme Court of Alabama affirmed this Court’s earlier decision in Cassell v. State, 55 Ala.App. 502, 317 So.2d 348 (1975), that the provisions of § 20-2-20, (a) and (b), Code of Alabama 1975, do not offend the provisions of Article IV, Sections 42 and 43 of the Constitution of Alabama 1901. McCurley v. State, Ala., 79-485, 390 So.2d 25.

This cause proceeded to trial under a five-count indictment, and at trial the appellant’s motion to exclude as to Count Four (Diazepam) was granted, and the appellant found guilty as charged under the remaining four counts. The Supreme Court in McCurley, supra, reversed the conviction under Count Two, pentazocine (talwain), but affirmed as to the remaining counts and remanded this cause to this Court for further proceedings.

As to the remaining counts: One, codeine; Three, chlorazepate; and Five, d-amphetamine sulfate, the Circuit Court of Mobile County is hereby affirmed. As to Count Two, Pentazocine (talwain), the judgment is reversed and remanded on the authority of McCurley, supra, and the cause is hereby remanded to the Circuit Court of Mobile County for proper sentence.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART, AND REMANDED FOR PROPER SENTENCE.

All the Judges concur.