CHILDERS v. STATE (2003)

The appellant, Jimmy Allen Childers, appeals the Jefferson Circuit Court's denial of his Rule 32, Ala. R.Crim. P., petition, attacking his 1986 conviction for second-degree robbery and his sentence of three years' imprisonment in the state penitentiary.

The record on appeal reveals that Childers was indicted for first-degree robbery, and that pursuant to a plea agreement with the State he pleaded guilty to a reduced charge of second-degree robbery. He did not appeal his conviction.   He has now filed a petition seeking postconviction relief.

In his Rule 32 petition, Childers argued that the trial court lacked jurisdiction to accept his guilty plea to a reduced charge of second-degree robbery.   He claimed that, under the facts of his case, second-degree robbery was not a lesser offense of first-degree robbery, the charge for which he was indicted.   The State moved to dismiss, arguing that the trial court properly accepted Childers's guilty plea because second-degree robbery was a lesser-included offense within the offense of first-degree robbery under the facts of this case.   The State further alleged that the petition was procedurally barred by Rules 32.2(a)(3) and (c), Ala. R.Crim. P. The trial court thereafter summarily denied the petition.

The record contains a copy of the transcript of Childers's guilty-plea proceedings.   This transcript reveals that during the colloquy, Childers admitted that he committed the robbery with two accomplices.   However, Childers's indictment for first-degree robbery does not allege facts indicating that he was aided in this offense by another participant, and the record shows that the indictment was never amended to include the fact that he was aided by other persons in the robbery.  Ex parte Cole, 842 So.2d 605 (Ala.2002).   Therefore, the circuit court did not have jurisdiction to accept Childers' guilty plea to a charge of second-degree robbery, and its denial of his Rule 32 petition was in error.   See Toliver v. State, 881 So.2d 1070 (Ala.Crim.App.2003).

Based on the foregoing, the judgment of the Jefferson Circuit Court summarily dismissing Childers's Rule 32 petition is reversed, and this matter remanded for that court to vacate his conviction for second-degree robbery.

REVERSED AND REMANDED.

I reluctantly concur with the main opinion's reversal of the circuit court's dismissal of Childers's Rule 32, Ala.R.Crim.P., petition, challenging his conviction and sentence for second-degree robbery, based on the holding of the Alabama Supreme Court in Ex parte Cole, 842 So.2d 605 (Ala.2002), and this Court's decision following Ex parte Cole, Toliver v. State, 881 So.2d 1070 (Ala.Crim.App.2003).   However, I write to urge the Supreme Court to revisit its holding in Ex parte Cole.

This Court is bound by decisions of the Alabama Supreme Court, see § 12-3-16, Ala.Code 1975, and “is without authority to overrule the decisions of [that] court.”  Jones v. City of Huntsville, 288 Ala. 242, 244, 259 So.2d 288, 290 (1972).   Thus, we have no choice but to reverse the circuit court's order dismissing Childers's Rule 32 petition and remand this case for that court to vacate his conviction for second-degree robbery, despite the fact that the plea colloquy indicated a factual basis for the acceptance of Childers's guilty plea to second-degree robbery.   The plea colloquy clearly indicated that Childers was “aided by another person actually present” at the time the robbery was committed.   See § 13A-8-42(a), Ala.Code 1975.   Although the colloquy did not specifically indicate that the indictment was being amended to add the fact that Childers was aided in the robbery by other persons, it is clear that the parties were attempting to do so.   Nevertheless, based on Ex parte Cole, the court's attempt to comply with the spirit of the law was insufficient, thus mandating reversal of the circuit court's order.   In my opinion, Ex parte Cole elevates form over substance, and the Court should revisit this decision at its earliest convenience.

McMILLAN, Presiding Judge.

COBB, BASCHAB, and SHAW, JJ., concur.  WISE, J., concurs specially, with opinion.