Ruben Corey McNabb v. State of Alabama
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REL08/31/07 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. ALABAMA COURT OF CRIMINAL APPEALS OCTOBER TERM, 2006-2007 _________________________ CR-06-1421 _________________________ Ruben Corey McNabb v. State of Alabama Appeal from Houston Circuit Court (CC-02-225.61) BASCHAB, PRESIDING JUDGE On February 11, 2004, the appellant, Ruben Corey McNabb, was convicted of first-degree robbery. trial court sentenced him, as a On March 24, 2004, the habitual offender, imprisonment for life without the possibility of parole. to See CR-06-1421 ยง13A-5-9(c), Ala. Code 1975. We affirmed his conviction in an unpublished memorandum and issued a certificate of judgment on February 14, 2005. See McNabb v. State, (CR-03-1141) 923 So. 2d 349 (Ala. Crim. App. 2004) (table). On or about March 21, 2007, the appellant filed a Rule 32 petition, challenging his sentence. After the State responded, summarily denied the petition. The appellant argues that the circuit court This appeal followed. his sentence exceeds the maximum authorized by law or is otherwise not authorized by law. Specifically, he contends that "[t]hree of the prior felony convictions from the State of Florida are actually Youthful Offender Convictions, under the Florida Youthful Offender Act 958.04(4), and cannot be used for sentencing enhancement under the Habitual Felony Offender Act to sentence Petitioner to life without parole." (C.R. 12.) The State concedes that we should remand this case for the circuit court to determine whether some of the prior convictions that were used to enhance the appellant's sentence were actually youthful offender adjudications. "[A] youthful offender adjudication cannot be used to enhance a sentence under the HFOA. 2 See Ex Parte Thomas, 435 CR-06-1421 So. 2d 1324 (Ala. 1982)." 875 (Ala. Crim. App. Grier v. State, 825 So. 2d 873, 2001). argument may be meritorious. Therefore, the appellant's Accordingly, we remand this case to the circuit court with instructions that it make specific, written findings of fact concerning the appellant's argument. On remand, the circuit court may require the State to respond more specifically to the appellant's argument and/or may conduct an evidentiary hearing. On remand, the circuit 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 56 days after the release of this opinion. The return to remand shall include the circuit court's written findings of fact and, if applicable, the State's response and/or a transcript of the evidentiary hearing. REMANDED WITH INSTRUCTIONS. McMillan, Shaw, Wise, and Welch, JJ., concur. 3
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