McWilliams v. State , 587 So. 2d 1064 ( 1991 )

587 So. 2d 1064 (1991)

John Wesley McWILLIAMS
v.
STATE.

CR-90-904.

Court of Criminal Appeals of Alabama.

September 20, 1991.

James P. Hess, Huntsville, for appellant.

James H. Evans, Atty. Gen., and Randall McNeill, Asst. Atty. Gen., for appellee.

JAMES H. FAULKNER, Retired Justice.

John Wesley McWilliams was indicted for the offenses of burglary in the third degree and theft of a motor vehicle, which is theft of property in the first degree. Prior to the date of trial, McWilliams requested youthful offender status. His request was granted, and he entered a guilty plea in each case. The trial court sentenced him to 2 years' imprisonment in each case, with 12 months of the sentence to be served at a youth center, the balance suspended, with 3 years' probation. The sentences were ordered to run concurrently. McWilliams's motion to grant probation or for reduction of sentence was denied. He appeals to this Court.

The issues raised on appeal are whether McWilliams was properly sentenced under the provisions of § 15-19-6, Code of Alabama 1975, and if not, whether there was a jurisdictional error on the part of the trial court that is not subject to waiver.

We hold that McWilliams was improperly sentenced, and that that error was jurisdictional and not subject to waiver, and we remand the case to the trial court for proper sentencing.

Section 15-19-6, Code of Alabama 1975, provides for probation for a period not to exceed three years (§ 15-19-6(a)(2)), and/or commitment to the custody of the Board of Corrections for a term of three years or less (§ 15-19-6(a)(4)).

McWilliams was, however, in effect, sentenced to four years. That sentence was improper. Wilson v. State, 417 So. 2d 627 (Ala.Cr.App.1982); Ex parte Jackson, 415 So. 2d 1169 (Ala.1982); Hastings v. State, 549 So. 2d 115 (Ala.Cr.App.1988). The punishment under youthful offender status is limited to three years' imprisonment.

Finally, this error in sentencing is jurisdictional and does not have to be preserved for review. Blair v. State, 549 So. 2d 112 (Ala.Cr.App.), cert. denied, 549 So. 2d 114 (Ala.1988). The case is remanded for proper sentencing.

The foregoing opinion was prepared by the Honorable JAMES H. FAULKNER, a Former Supreme Court Justice, and his opinion is hereby adopted as that of the Court.

REVERSED AND REMANDED.

All the Judges concur.