
    Ex parte Michael C. TUPPER. (Re Michael C. Tupper v. State).
    1970839.
    Supreme Court of Alabama.
    June 11, 1999.
    Opinion on Denial of Rehearing Nov. 19, 1999.
    J. Robert Bentley, Oneonta, for petitioner.
    Bill Pryor, atty. gen., and James B. Prude, asst. atty. gen., for respondent.
    
      
      
        Justice Brown was a member of the Court of Criminal Appeals when that court considered this case.
    
   COOK, Justice.

The legal issue presented in this case is the same as that presented in Ex parte Parker, 740 So.2d 432 (Ala.1999). In Parker, we addressed the issue whether § 32-5A-191(h), Ala.Code 1975, states a substantive offense, of which the three prior convictions referred to in that subsection are elements, or whether the prior offenses referred to in that subsection are properly to be considered only for the purposes of determining whether upon conviction a defendant shall receive an enhanced sentence. This Court held that § 32-5A-191(h) is a sentence-enhancing provision and does not create a separate substantive offense.

The judgment of the Court of Criminal Appeals is reversed and the cause remanded, based on our holding in Parker.

REVERSED AND REMANDED.

HOOPER, C.J., and MADDOX, HOUSTON, KENNEDY, SEE, LYONS, and JOHNSTONE, JJ., concur.

BROWN, J., recuses herself.

On Application for Rehearing

COOK, Justice.

The State’s rehearing petition raises the same issues we addressed on the State’s application for rehearing in Ex Parte Formby, 750 So.2d 587, 588 (Ala.1999). Because those issues have already been addressed, we deny the State’s request for a clarification of our decision in Ex Parte Parker, 740 So.2d 432 (Ala.1999). The application for rehearing is denied.

APPLICATION DENIED.

HOOPER, C.J., and MADDOX, HOUSTON, SEE, LYONS, JOHNSTONE, and ENGLAND, JJ., concur.

BROWN, J., recuses herself.  