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12/29/95 KENNETH JAMES JACKSON v. STATE

December 29, 1995

KENNETH JAMES JACKSON
v.
STATE



Appeal from Jefferson Circuit Court. (CC-91-3379). James Hard, TRIAL JUDGE. Reh. Den. March 4, 1994. S.C. Granted Cert. August 12, 1994. S.C. Denied Rehearing February 10, 1995. On Remand from S.C. May 5, 1995.

Released for Publication May 31, 1996.

McMILLAN, Judge. All Judges concur.

The opinion of the court was delivered by: Mcmillan

ON RETURN TO REMAND

McMILLAN, JUDGE

Kenneth James Jackson was tried and convicted of capital murder. The jury recommended the death penalty by a vote of 11 to 1. A subsequent sentencing hearing was held before the trial court, and the appellant was sentenced to death by electrocution. This court affirmed the conviction and sentence, Jackson v. State, 1993 Ala. Crim. App. LEXIS 1090, 674 So. 2d 1318 (Ala. Cr. App. 1993); however, the Alabama Supreme Court affirmed the judgment as to the conviction but reversed the judgment as to the sentence and remanded the case to this Court on the grounds that a capital defendant may not voluntarily waive the right to be present in the courtroom during the sentencing phase of the trial. [Ms. 1930756, August 12, 1994] 674 So. 2d 1365 (Ala. 1994). The Alabama Supreme Court held that the appellant's absence from the courtroom during the sentencing phase, although at his own request, was plain error. In compliance with directions from the Alabama Supreme Court, this court reversed the judgment and remanded this cause to the trial court for sentencing. The trial court has filed a case action summary sheet on return to remand, indicating that on June 29, 1995, another sentencing was conducted. The case action summary states that the appellant was present during these proceedings. A jury was selected and sworn and the evidence was presented through stipulated facts. Subsequently, the jury recommended a sentence of life imprisonment without parole by a vote of 10 to 2. Thereafter, on the same date, the trial court accepted the jury's advisory sentence and the appellant was sentenced to life imprisonment without parole.

The judgment is due to be affirmed.

AFFIRMED.

All Judges concur.

19951229

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