MILLER v. STATE (2000)

The appellant, Barry Miller, was convicted of attempted murder, a violation of §§ 13A-4-2 and 13A-6-2, Ala.Code 1975, and discharging a firearm into an occupied vehicle, a violation of § 13A-11-61, Ala.Code 1975 (case number CC-96-2719);  attempted first-degree assault, a violation of §§ 13A-4-2 and 13A-6-20, Ala.Code 1975 (case number CC-96-2720);  attempted murder, a violation of §§ 13A-4-2 and 13A-6-2, Ala.Code 1975, and discharging a firearm into an occupied vehicle, a violation of § 13A-11-61, Ala.Code 1975 (case number CC-96-2722);  and attempted murder, a violation of §§ 13A-4-2 and 13A-6-2, Ala.Code 1975, and discharging a firearm into an occupied vehicle, a violation of § 13A-11-61, Ala.Code 1975 (case number CC-96-5054).   The trial court sentenced him to serve concurrent terms of 23 years in prison in all four cases.   In an unpublished memorandum opinion released today, we have affirmed the appellant's convictions.   See Miller v. State, (CR-99-2010, September 29, 2000) --- So.2d ---- (Ala.Crim.App.2000) (table).   In this opinion, we address the propriety of the sentence on the appellant's conviction for attempted first-degree assault.

First-degree assault is a Class B felony.   See § 13A-6-20, Ala.Code 1975.   Section 13A-4-2, Ala.Code 1975, provides, in pertinent part:

“(d) An attempt is a:

“․

“(3) Class C felony if the offense attempted is a Class B felony.”

The statutory range of punishment for a Class C felony is “not more than 10 years or less than 1 year and 1 day.”  § 13A-5-6(a)(3), Ala.Code 1975.   Therefore, the appellant's 23-year sentence for attempted first-degree assault exceeds the maximum authorized by law.   Accordingly, we remand this case to the trial court with instructions that that court resentence the appellant in accordance with §§ 13A-4-2, 13A-6-20, and 13A-5-6(a)(3), 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 28 days after the release of this opinion.

AFFIRMED BY MEMORANDUM IN PART^* ;  REMANDED WITH INSTRUCTIONS IN PART.^**

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 November 9, 2000, on return to remand, the Court of Criminal Appeals affirmed, without opinion.   On December 8, 2000, that Court denied rehearing, without opinion.

BASCHAB, Judge.

LONG, P.J., and McMILLAN, COBB, and FRY, JJ., concur.