Averett v. State

On Return to Remand

On January 22, 1993, 640 So.2d 1, we remanded this case to the trial court with instructions to hold a new sentencing hearing and to resentence Ronald Averett without enhancing his sentence based on prior convictions resulting from pleas of nolo conten-dere. We found on original submission that the trial court had erroneously used three prior Florida felony convictions that were based upon pleas of nolo contendere for enhancement purposes in sentencing Averett to life imprisonment as a habitual felony offender for theft of property in the first degree. As previously noted, prior felony convictions based upon pleas of nolo contendere cannot be used in Alabama to enhance a sentence for purposes of applying the Habitual Felony Offender Act (Code of Alabama 1975, § 13A-5-9). Davis v. State, 507 So.2d 1023 (Ala.Cr.App.1986).

The trial court has complied with our instructions and has filed a return. The return shows that the trial court held a new sentencing hearing and resentenced Averett, without considering for enhancement purposes prior convictions based upon nolo con-tendere pleas, to 20 years’ imprisonment.

*3Having previously addressed the other issues raised by Averett on appeal and finding no merit in them, we conclude that his conviction for theft of property in the first degree and the 20-year sentence imposed on remand are due to be affirmed. Code of Alabama 1975, §§ 13A-8-3 and 13A-5-6.

AFFIRMED.