Troy King, atty. gen., and Andy Scott Poole, asst. atty. gen., for appellant.

Christopher Earl Malcom, Moulton, for appellee.

WISE, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, SHAW, and WELCH, JJ., concur.

BASCHAB, P.J., dissents, with opinion.

BASCHAB, Presiding Judge, dissenting.

I respectfully dissent for the reasons set forth in my dissent in State v. Clemons, [Ms. CR-05-1950, November 2, 2007] ___ So.2d ___ (Ala.Crim.App. 2007). I also note that the trial court did not have the authority to both dismiss the indictment and then transfer the case to the lower court.