WASHINGTON v. STATE

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Court of Criminal Appeals of Alabama.

Marcus WASHINGTON v. STATE.

CR-00-0990.

Decided: August 31, 2001

David Thomas Shaw, Eutaw, for appellant. Marcus Washington, pro se. Submitted on appellant's brief only.

The appellant, Marcus Washington, was convicted of first-degree robbery, a violation of § 13A-8-41(a)(1), Ala.Code 1975.   The trial court sentenced him to serve a term of 13 years in prison.   The appellant did not file any post-trial motions.   This appeal followed.

Appellate counsel filed a brief and a motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).   Counsel stated that he had reviewed the transcript and record on appeal and had not found any meritorious issues to advance on appeal.   The appellant filed several pro se issues for our consideration, but appellate counsel stated that they were not meritorious.   We have thoroughly reviewed the record and have not found any errors that warrant a reversal of the appellant's conviction.   Therefore, we affirm the appellant's conviction for first-degree robbery.

However, our examination of the record reveals that the trial court improperly sentenced the appellant to serve a term of 13 years in prison.   The appellant was indicted for first-degree robbery while armed with a deadly weapon, and the jury found him guilty as charged in the indictment.   First-degree robbery is a Class A felony.   See § 13A-8-41(c), Ala.Code 1975.   In addition, § 13A-5-6(a)(4), Ala.Code 1975, provides that, when a firearm is used in the commission of a Class A felony, the minimum sentence is 20 years in prison.   The appellant's 13-year sentence falls below this mandatory minimum.   Accordingly, we remand this case to the trial court with instructions that that court resentence the appellant in accordance with § 13A-5-6(a)(4), Ala.Code 1975.   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 35 days after the release of this opinion.   The return to remand shall include a transcript of the remand proceedings, if any, conducted by the trial court.

AFFIRMED AS TO CONVICTION;  REMANDED WITH INSTRUCTIONS AS TO SENTENCE.*

FOOTNOTES

FOOTNOTE.   Note from the reporter of decisions:  On October 19, 2001, on return to remand, the Court of Criminal Appeals affirmed, without opinion.

BASCHAB, Judge.

McMILLAN, P.J., and COBB, SHAW, and WISE, JJ., concur.