
    Robert Norman LUKE v. STATE.
    1 Div. 36.
    Court of Criminal Appeals of Alabama.
    June 26, 1979.
    Rehearing Denied July 17, 1979.
    See also, Ala.Cr.App., 373 So.2d 1226.
    
      J. Wayne Moulton, Decatur, Ga., Robert F. Clark, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Sarah Kathryn Farnell, Asst. Atty. Gen., for the State, appellee.
   TYSON, Judge.

Robert Norman Luke was indicted by the April, 1977, Session of the grand jury of Baldwin County, Alabama, for the unlawful possession of Marijuana, on, to-wit, March 81, 1977.

Luke and others were arraigned on April 18, 1977, and entered pleas of not guilty to the State charge of possession of Marijuana. This cause arose because the appellant and several other individuals were found in possession of over 12,000 pounds of Marijuana at a house in Orange Beach, Baldwin County, Alabama, on March 31, 1977. This ■cause was submitted to the trial judge on an agreed stipulation of facts, and the appellant was found guilty and sentenced to five years imprisonment.

Prior to the submission of this cause to the trial judge, on February 13, 1979, the appellant filed a plea of former jeopardy, based upon his conviction in the United States District Court in Mobile for the unlawful possession of “12,246 pounds of Marijuana” “with intent to distribute” the said Marijuana.

I

This cause is a companion case to Barnett v. State, 373 So.2d 1226, and is controlled by the provisions of § 20-2-77, Code of Alabama 1975; and Barnett v. State, supra.

II

As noted in Barnett, the appellant could not have filed his plea of former jeopardy at the time of his original arraignment because the proceeding in Federal Court was not heard until sometime after the arraignment. The plea of former jeopardy was, however, filed at the earliest possible opportunity and goes to the jurisdiction of the Circuit Court to hear this cause.

As pointed out in Barnett v. State, supra, a prior conviction in Federal Court is no bar to a subsequent prosecution in State Court for the same offense.

However, the charge in the instant cause is controlled by the provisions of § 20-2-77, Code of Alabama 1975, and such requires a reversal of this case.

This cause is reversed and rendered under the authority of Barnett v. State, 373 So.2d 1226.

REVERSED AND RENDERED.

HARRIS, P. J., and BOOKOUT and BOWEN, JJ., concur.

DeCARLO, J., dissents with opinion.

DeCARLO, Judge,

dissenting.

The offense under the Alabama statute is not the same as the federal offense charged to this appellant. One is the offense of possession (Alabama) and the other, unlawful distribution (federal).

Therefore, I respectfully dissent from the majority opinion.  