SMITH v. STATE

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Court of Criminal Appeals of Alabama.

Michael SMITH v. STATE.

CR-99-0780.

Decided: December 22, 2000

D. Bruce McLean, Enterprise, for appellant. Bill Pryor, atty. gen., and P. David Bjurberg, asst. atty. gen., for appellee.

In a separate unpublished memorandum, we are today affirming Michael Smith's convictions for one count of unlawful distribution of cocaine, two counts of assault in the second degree, and two counts of assault in the third degree.   Smith was sentenced to 15 years' imprisonment for the conviction for the unlawful distribution of cocaine.   That sentence included an additional 10 years' imprisonment, imposed pursuant to the enhancement provisions of §§ 13A-12-250 and -270, Ala.Code 1975, because the sale occurred within a three-mile radius of a school and within a three-mile radius of a public housing project.   However, Smith correctly argues that the State failed to give him notice of its intent to invoke the enhancement provisions of §§ 13A-12-250 and -270.   Prior notice by the State is required before the enhancement provisions of §§ 13A-12-250 and -270 may be applied.   See, e.g., Stevens v. State, 659 So.2d 990, 990 (Ala.Crim.App.1994);  and Cunny v. State, 629 So.2d 693, 696 (Ala.Crim.App.1993).

Accordingly, we remand this case to the trial court with directions for that court to hold a new sentencing hearing with respect to Smith's conviction for the unlawful distribution of cocaine.   Due return should be filed with this court no later than 28 days from the date of this opinion.

AFFIRMED BY MEMORANDUM AS TO CONVICTIONS AND AS TO SENTENCES FOR ASSAULT * ;  REMANDED WITH DIRECTIONS AS TO SENTENCING ON UNLAWFUL DISTRIBUTION CONVICTION.**

FOOTNOTES

FOOTNOTE.   Note from the reporter of decisions:  This case will also appear on a table of decisions without opinions.

FOOTNOTE.   Note from the reporter of decisions:  On February 23, 2001, on return to remand, the Court of Criminal Appeals affirmed, without opinion.

LONG, Presiding Judge.

McMILLAN, COBB, BASCHAB, and FRY, JJ., concur.