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08/18/95 JOHNNY JEROME ACREE v. STATE

August 18, 1995

JOHNNY JEROME ACREE
v.
STATE



Appeal from Houston Circuit Court. (CC-93-048). Michael Crespi, TRIAL JUDGE. This Opinion Substituted on Grant of Rehearing for Withdrawn Opinion of January 13, 1995, Previously .

Second Application For Rehearing Granted October 20, 1995. Third Application For Rehearing Granted December 1, 1995.

Cobb, Judge. All the Judges concur.

The opinion of the court was delivered by: Cobb

ON APPLICATION FOR REHEARING

COBB, JUDGE

This case was originally assigned to another Judge on the Alabama Court of Criminal Appeals. It was reassigned to Judge Cobb on January 17, 1995.

This court's opinion of January 13, 1995, is hereby withdrawn and the following opinion is substituted therefor.

The appellant, Johnny Jerome Acree, pleaded guilty to unlawful possession of marijuana in the first degree, a violation of § 13A-12-213, Code of Alabama 1975. He was sentenced to 15 years' imprisonment as a habitual offender.

The appellant claims that his guilty plea was not knowingly or voluntarily entered because (1) the trial court failed to use the form for explanation of rights and plea of guilty, commonly known as an "Ireland " *fn1 form, or a substantially similar form, and (2) the trial court informed the appellant of the maximum and minimum sentence range resulting from the application of the Habitual Felony Offender Act and failed to give the sentence range for the convictions if the Habitual Felony Offender Act did not apply.

The State contends that because the appellant did not object to this matter at the guilty plea proceeding, did not move for a new trial, or did not move to withdraw his guilty plea, this issue is procedurally barred. We agree.

In Ex parte Hinton, [Ms. 1931688, May 5, 1995], So. 2d (Ala. 1995), the Alabama Supreme Court held that "the trial court is always to be given the first opportunity to rectify any error it may have made concerning sentencing." Here, the appellant failed to preserve this issue for our review.

OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION GRANTED; AFFIRMED.

All the Judges ...


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