THOMAS v. STATE

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Court of Criminal Appeals of Alabama.

Billy THOMAS v. STATE of Alabama.

CR-01-0396.

Decided: November 22, 2002

Billy J. Thomas, pro se. William H. Pryor, Jr., atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for appellee.

Following a trial de novo in the circuit court on September 17, 2001, after a conviction in district court, Billy Thomas was convicted of menacing and third-degree criminal trespass, violations of §§ 13A-6-23 and 13A-7-4, Ala.Code 1975.   The trial court sentenced Thomas to serve concurrent sentences of 90 and 60 days in jail, respectively, but suspended the sentences and ordered that Thomas be placed on supervised probation for 2 years.   Thomas filed several postconviction motions, including a motion for a judgment of acquittal and a motion in arrest of judgment, all of which the trial court summarily denied.   This appeal followed.

We remand this cause for the trial court to resentence Thomas for his third-degree criminal trespass conviction.   Third-degree criminal trespass is a “violation.”   See 13A-7-4(b), Ala.Code 1975.  “Sentences for violations shall be for a definite term of imprisonment in the county jail, not to exceed 30 days.”  § 13A-5-7(b), Ala.Code 1975.   Therefore, Thomas's sentence of 60 days for third-degree trespassing is excessive.

We remand this cause for the trial court to resentence Thomas in accordance with the statute and with this opinion.   Due return shall be made within 42 days.

Because we remand this cause, we pretermit any discussion of Thomas's other issues on appeal.

REMANDED WITH DIRECTIONS.*

FOOTNOTES

FOOTNOTE.   Note from the reporter of decisions:  On January 24, 2003, on return to remand, the Court of Criminal Appeals affirmed, without opinion.   On February 14, 2003, that court denied rehearing, without opinion.   On June 13, 2003, the Supreme Court denied certiorari review, without opinion (1020848).

COBB, Judge.

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