Alabama Court of Criminal Appeals, 2004

Holmes v. State

Holmes v. State
Alabama Court of Criminal Appeals · Decided April 30, 2004 · Baschab, McMillan, Wise, Shaw, Cobb
895 So. 2d 388; 2004 Ala. Crim. App. LEXIS 78; 2004 WL 925803 (Southern Reporter, Second Series)

Holmes v. State

Opinion of the Court

BASCHAB, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and WISE, J., concur; SHAW, J., dissents, with opinion, which COBB, J., joins.

Dissenting Opinion

SHAW, Judge,

dissenting.

I respectfully disagree with the majority’s conclusion in its unpublished memorandum that what I assume, but have no conclusive way of knowing, was a $20 prepaid long-distance calling card falls within the definition of either a “credit card” or a “debit card,” as set out in § 13A-9-14, Ala.Code 1975. It appears to me that the issue discussed in the unpublished memorandum may be dispositive under the facts presented; however, the issue is not addressed by the parties. I would not affirm on this basis; instead, based on the record before us, I would remand the case for the trial court to determine exactly what kind of card was stolen and whether it would constitute either a “credit card” or “debit card” as defined by statute. The resolution of that issue on return to remand would dictate whether we address the appellant’s specific arguments on appeal.

COBB, J., concurs.

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