
    Carlton Reashard LANE v. STATE of Alabama.
    CR-07-1354.
    Court of Criminal Appeals of Alabama.
    Dec. 18, 2009.
    On Return to Remand March 26, 2010.
    Order Overruling Rehearing Applications April 30, 2010.
    Certiorari Denied (as to Defendant) Aug. 6, 2010 Alabama Supreme Court 1091128.
    
      Joshua J. Lane, Anniston, for appellant.
    
      Troy King, atty. gen., and William D. Little, asst. atty. gen., for appellee.
   PER CURIAM.

The appellant, Carlton Reashard Lane, was convicted of murdering Christopher Toson, a violation of § 13A-6-2, Ala.Code 1975, and was sentenced pursuant to the Habitual Felony Offender Act (“HFOA”) to 120 years in the state penitentiary.

Lane does not challenge the sufficiency of the evidence to convict him; thus, only a brief recitation of the facts is necessary. The State’s evidence tended to show the following. On November 9, 2006, Lane, Keyonte Chick, and Randy Pearson planned to rob a man named Chris because they believed that he had in his possession a large sum of money. Chick testified that the three drove past Nor-wood Homes, a housing project in Anni-ston. As they approached the housing project Lane told Pearson, who was driving, to stop the vehicle. Lane and Chick got out of the vehicle and approached a group of men — Toson, Joseph Ingram, Jaydee Turmon, and Travis Turner — who were sitting around the front of one of the apartments. Lane accused Toson of pulling a gun on him, and Lane appeared to reach into his pocket. Toson fled. Lane pulled a gun from his pocket and started firing at Toson as he was running away. Chick testified that he also fired his weapon but that he was pointing his gun in the air. Ingram, Turner, and Chick all testified that Lane was the shooter. Dr. Adel Shaker, the medical examiner, testified that Toson died as a result of a gunshot wound to his heart.

I.

Lane argues that the circuit court abused its discretion when it denied his request for a continuance to secure the testimony of Phillip Talley. Specifically, Lane argues that Talley could have testified that he overheard Chick tell someone that Chick was responsible for Toson’s death.

The record shows that, after the State rested, defense counsel informed the court that Talley would be their first defense witness. The circuit court noted that it would take six hours to transport Talley to the courthouse from the Ventress Correctional Facility in Clayton. The State questioned the value of Talley’s testimony, and the circuit court asked Lane to make an offer of proof as to Talley’s expected testimony. Lane informed the court that Talley would testify that he overheard Keyonte Chick say that he was responsible for Toson’s murder. The circuit court refused to delay the trial after finding that Talley’s testimony would be inadmissible hearsay.

“To warrant a continuance on the ground that a witness is absent, it must be shown that the expected testimony of the witness is material and competent, that there is a probability that the evidence will be forthcoming if the case is continued, and that the moving party exercised due diligence to secure the evidence. Ex parte Saranthus, 501 So.2d 1256 (Ala.1986). Material evidence means ‘[e]vidence which has an effective influence or bearing on questions in issue.’ Black’s Law Dictionary 976 (6th ed. 1990). ‘Simply put, a “material” fact is one that would matter in the trial on the merits.’ Sumner v. Sumner, 664 So.2d 718, 723 (La.App.1995). It must be shown that substantially favorable testimony would be given by the witness and that the denial of a continuance would materially prejudice the defendant. Whitehead v. State, 429 So.2d 641 (Ala.Cr.App.1982). In addition, it must be established that the expected testimony is not merely cumulative or in the nature of impeachment, and the motion for a continuance must not be made merely for purposes of delay. Mitchell v. Moore, 406 So.2d 347 (Ala.1981); Malone v. State, 659 So.2d 1006 (Ala.Cr.App.1995); McClellan v. State, 628 So.2d 1026 (Ala.Cr.App.1993); Prince v. State, 623 So.2d 355 (Ala.Cr.App.1992).”

Smith v. State, 698 So.2d 189, 205 (Ala.Crim.App.1996).

Lane argues that Talley’s testimony would have been admissible under Rule 801(d)(2), Ala. R. Evid., as an admission of a party opponent. Rule 801(d)(2), Ala. R. Evid., states:

“(2) Admission by Party Opponent. The statement is offered against a party and is (A) the party’s own statement in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a cocon-spirator of a party during the course and in furtherance of the conspiracy.”

As the circuit court stated, Lane offered no explanation as to how Talley’s testimony fit within any exception to the hearsay rule. Also, “[t]o meet this requirement the statement must be offered against a party. The statement here was not offered against a party but was offered in [the defendant’s] defense.” Johnson v. State, 820 So.2d 842, 867 (Ala.Crim.App.2000). Lane failed to establish that Talley’s testimony would be admissible. Thus, the circuit court did not abuse its discretion in denying Lane’s request to delay the trial in order to transport Talley from the Ventress Correctional Facility in Clayton.

II.

Lane next argues that his sentence of 120 years is cruel and unusual punishment. Specifically, Lane contends that his sentence is disproportionate to the nature of his offense and is unconstitutional.

First, we must determine whether Lane’s sentence exceeds the limits set by statute. This Court has a duty to notice jurisdictional defects ex mero motu. See Nunn v. Baker, 518 So.2d 711 (Ala.1987). “A sentence that exceeds the maximum allowed by law is an illegal sentence affecting the trial court’s jurisdiction.” Wallace v. State, 959 So.2d 1161, 1165 (Ala.Crim.App.2006).

Lane was convicted of murder — a Class A felony. Section 13A-5-6(a), Ala.Code 1975, provides, in pertinent part:

“(a) Sentences for felonies shall be for a definite term of imprisonment, which imprisonment includes hard labor, within the following limitations:
“(1) For a Class A felony, for life or not more than 99 years or less than 10 years.”

However, Lane had two prior felony convictions and his sentence was due to be enhanced under the HFOA. Section 13A-5-9(b), Ala.Code 1975, states, in pertinent part:

“(b) In all cases when it is shown that a criminal defendant has been previously convicted of any two felonies and after such convictions has committed another felony, he or she must be punished as follows:
(3) On conviction of a Class A felony, he or she must be punished by imprisonment for life or for any term of not less than 99 years.”

Also, § 13A-5-2(a), Ala.Code 1975, provides: “Every person convicted of a felony shall be sentenced by the court to imprisonment for a term authorized by Sections 13A-5-6,13A-5-9, and 13A-5-10.”

This Court in Smith v. State, 447 So.2d 1327 (Ala.Crim.App.1983), considered whether the circuit court’s 45-year sentence for Smith’s conviction for manslaughter, a Class C felony where a firearm was used, was a legal sentence. The applicable statute, § 13A-5-6(a)(5), Ala.Code 1975, provided that the sentence should be for “not less than 10 years.” Section 13A-5-6(a)(3), provided that for a Class C felony the sentence not exceed 10 years. In finding that Smith’s sentence exceeded the statutory 10-year maximum, we stated:

“The defendant ... argues that subsection (a)(5) of Section 13A-5-6 fails to state a maximum term of imprisonment and is therefore unconstitutional. We find that this section is constitutional and that both maximum and minimum terms of imprisonment are provided by the statute. We reach this conclusion by the application of well settled principles of statutory construction. Generally, see D. Sands, Sutherland Statutes And Statutory Construction, Section 59.03 (4th ed. 1974).
“Statutes imposing penalties ‘must be strictly construed in favor of persons sought to be subjected to their operation’, Anderson v. City of Birmingham, 205 Ala. 604, 605, 88 So. 900 (1921), and ‘in favor of life and liberty.’ 24B C.J.S. Criminal Law, Section 1979 (1962). ‘However, even penal laws are not to be construed so strictly as to defeat the obvious intent of the legislature.’ McDonald v. State, 32 Ala.App. 606, 608, 28 So.2d 805 (1947). ‘(T)he interests of justice demand that criminal statutes not be construed irresponsibly. Unfortunate language or phrases within a statute, ... (do) not sanction a construction of that statute at odds with common sense and practicality of application.’ Nobis v. State, 401 So.2d 191, 196 (Ala.Cr.App.), cert. denied, Ex parte Nobis, 401 So.2d 204 (Ala.1981).
“Although ‘penal statutes are to reach no further in meaning than their words’, Fuller v. State, 257 Ala. 502, 505, 60 So.2d 202 (1952); Sexton v. State, 392 So.2d 1239, 1241 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1241 (Ala.1981), ‘every word and each section thereof must be given effect, if possible, and construed with the other sections in pari materia. In re Ashworth, 291 Ala. 723, 726-27, 287 So.2d 843 (1974). ‘(P)arts of the same statute are in pari materia and each part is entitled to equal weight.’ Darks Dairy [Inc. v. Alabama Dairy Comm’n ], 367 So.2d [1378] at 1380-81 [ (Ala.1979) ]. ‘(S)tatutes must be read as whole’, Adams v. Mathis, 350 So.2d 381, 385 (Ala.1977), and not construed as isolated phrases or clauses. Darks Dairy, supra.
“If there is a conflict in the provisions of the same statute, the last provision in point of arrangement must control. Ashworth, supra; 24B C.J.S. Criminal Law, Section 1979 (1962). This is due to the principle of statutory construction which assumes that ‘in enacting the statute the legislature had full knowledge and information as to prior and existing law on the subject of the statute.’ Miller v. State, 349 So.2d 129, 131 (Ala.Cr.App.1977).
“ Tf a statute is susceptible to two constructions, one of which is workable and fair and the other unworkable and unjust, the court will assume that the legislature intended that which is workable and fair.’ State v. Calumet & Hecla Consolidated Copper[ Co.], 259 Ala. 225, 233-34, 66 So.2d 726 (1953). Statutes ‘should not be construed, however, as intending to prevent punishment unless no other alternative is permissible.’ 24B C.J.S. Criminal Law, Section 1979 (1962).
“ ‘A criminal statute must be definite and certain with respect to the punishment it is intended to impose.’ Smith v. United States, 145 F.2d 643, 644 (10th Cir.1944), cert. denied, 323 U.S. 803, 65 S.Ct. 563, 89 L.Ed. 641 (1945). Of particular importance in this case is the principle that the ‘constitutional validity of a particular statute is not affected merely because the statute does not expressly limit and fix the maximum penalty which may be imposed. It is sufficient if the maximum penalty is fixed by a general or related statute.’ Andreas v. Clark, 71 F.2d 908, 909 (9th Cir.1934); Palmer v. State, 168 Ala. 124, 53 So. 283 (1910); 22 C.J.S. Criminal Law, Section 25 (1961).
“Alabama has no general statute fixing the maximum penalty which may be imposed for a felony. Section 15-18-23, Alabama Code (1975), provided that ‘(w)hen no maximum limit to the duration of the imprisonment is prescribed by law, the court may, in its discretion, sentence the offender to imprisonment for the term of his natural life.’ Trone v. State, 366 So.2d 379 (Ala.Cr.App.1979). This section was repealed by our new Criminal Code.
“Applying these principles and rules of construction, we find that Section 13A-5-6 is definite and certain with respect to the punishments it intends to impose. We do find that it was misconstrued by the trial judge who mistakenly sentenced the defendant to a term of imprisonment in excess of that authorized by statute.
“Isolated from the remainder of the statute, subdivisions (4) and (5) of subsection (a) do establish minimum sentences without fixing maximum terms. Construing the statute as a whole, it is clear that those maximum terms are in fact supplied by subdivisions (1), (2) and (3) of subsection (a). Any confusion created by the failure of subdivisions (4) and (5) to specifically state the maximum limits of imprisonment must be imputed to the fact that these subdivisions were added by subsequent amendment. Because the new subdivisions neither repeal nor contradict the existing provisions of Section 13A-5-6, the maximum sentences of the existing provisions of the statute must govern if the statute is to be construed as a whole giving effect to each portion and every word thereof. This is the only reasonable and just construction available.”

447 So.2d at 1332-34. The Alabama Supreme Court in affirming this Court’s decision in Smith, stated:

“We agree with the opinion of the Court of Criminal Appeals. Under § 13A-5-6(a)(3) the term of imprisonment may be set at not more than 10 years. Under section (5) if a deadly weapon is used the sentence must be for at least 10 years. Section (5) must be construed to mean that the 10-year-term is both the minimum and maximum sentence which can be imposed for a Class C felony. We have very carefully considered the forceful argument made by the state that a sentencing statute which sets a minimum sentence but specifically sets no maximum, implicitly sets a maximum sentence of life imprisonment, but we are persuaded that the reasoning by the Court of Criminal Appeals is correct and that the judgment of that court is due to be affirmed.”

Smith v. State, 447 So.2d 1334, 1335-36 (Ala.1984).

As Smith counsels, “rules and statutes relating to the same subject matter must be read in pari materia, thus allowing for legal harmony where possible.” State ex rel. Daw, 786 So.2d 1134, 1136 (Ala.2000). We must read § 13A-5-9(a)(3), in conjunction with § 13A-5-6, Ala.Code 1975. Accordingly, the only sentences available for Lane were either 99 years’ imprisonment or life; the 120-year sentence imposed by the circuit court exceeded the statutory maximum.

This interpretation is consistent with Rule 14.4, Ala. R.Crim. P., the rule governing the acceptance of a guilty plea. We have consistently held that a defendant must be apprised of the correct minimum and maximum sentence before pleading guilty. See White v. State, 4 So.3d 1208 (Ala.Crim.App.2008); Gordon v. State, 692 So.2d 869 (Ala.Crim.App.1996). This right is incorporated into Rule 14.4(a)(1)(ii), Ala. R.Crim. P., which states that before pleading guilty the defendant must be advised of “[t]he mandatory minimum penalty, if any, and the maximum possible penalty provided by law, including any enhanced sentencing provisions.” The “Explanation of Rights and Plea of Guilty Form,” attached as an appendix to Alabama Rules of Criminal Procedure sets out the sentence range for a Class A felony where there are two prior felony convictions as “life imprisonment or any term of years not less than 99.” Rule 14.4(d), Ala. R.Crim. P., further states that “[t]he court may comply with the requirements of Rule 14.4(a) by determining from a personal colloquy with the defendant that the defendant has read, or has had read to the defendant, and understands each item contained in Form C-44B, CR-51, CR-52, or Form C-44A, as the case may be.” See also Carter v. State, 853 So.2d 1040, 1041 (Ala.Crim.App.2002) (“The maximum sentence for a conviction of first-degree robbery, a Class A felony, with two prior felony convictions, is life imprisonment or imprisonment for a term of not less than 99 years.”); Craig v. State, 645 So.2d 349, 351 (Ala.Crim.App.1994) (“Assuming that Craig had had two prior felony convictions, the sentence for a first degree robbery conviction would.have been life imprisonment or a term of not less than 99 years.”).

Accordingly, this case is remanded to the Calhoun Circuit Court for that court to resentence Lane in accordance with the terms set out in this opinion. Due return should be filed'in this Court within 42 days from the date of this opinion.

REMANDED WITH INSTRUCTIONS.

WELCH and KELLUM, JJ„ concur.

WISE, P.J., concurs in the result.

WINDOM and MAIN, JJ., concur in part and dissent in part, with opinions.

WINDOM, Judge,

concurring in part and dissenting in part.

I agree with the plurality’s decision to uphold Carlton Reashard Lane’s conviction; however, for the reasons that follow, I disagree with the plurality’s decision to overturn Lane’s 120-year sentence.

As the plurality recognizes, Lane was convicted of murder, a violation of § 13A-6-2, Ala.Code 1975, which is a Class A felony. At the time of his conviction, Lane had previously been convicted of two felonies. Because Lane was convicted of a Class A felony and had two previous felony convictions, the range of sentences to which he was exposed was governed by § 13A-5-9(b)(S), Ala.Code 1975, of the Habitual Felony Offender Act. Section 13A-5-9(b)(3), Ala.Code 1975, provides that “[o]n conviction of a Class A felony, [the defendant] must be punished by imprisonment for life or for any term of not less than 99 years.” Interpreting this provision, the plurality holds that “the only sentences available for Lane were either 99 years’ imprisonment or life”; therefore, Lane’s 120-year sentence is illegal. In holding that § 13A-5-9(b)(3) authorizes only two sentences (life or 99 years), the plurality rejects the plain language of the statute. Therefore, I must dissent.

It is well settled that “the first rule of statutory construction [is] that where the meaning of the plain language of the statute is clear, it must be construed according to the plain language.... ” Ex parte United Serv. Stations, Inc., 628 So.2d 501, 504 (Ala.1993)(citing King v. National Spa & Pool Inst., 607 So.2d 1241, 1246 (Ala.1992)). “‘“The fundamental principle of statutory construction is that words in a statute must be given their plain meaning.” ’ ” Ex parte Ruggs, 10 So.3d 7, 11 (Ala.2008) (quoting Trott v. Brinks, Inc., 972 So.2d 81, 85 (Ala.2007), quoting in turn Mobile Infirmary Med. Ctr. v. Hodgen, 884 So.2d 801, 814 (Ala.2003)). “When a court construes a statute, ‘[w]ords used in [the] statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says.’ ” Ex parte Berryhill, 801 So.2d 7, 10 (Ala.2001) (quoting IMED Corp. v. Systems Eng’g Assocs., Corp., 602 So.2d 344, 346 (Ala.1992)). Because courts are bound to “interpret the plain language of [a] statute to mean exactly what it says,” courts may not “engage in judicial construction [unless] the language in the statute is ambiguous.” Ex parte Pratt, 815 So.2d 532, 535 (Ala.2001). That is, “ ‘ “[w]here plain language is used a court is bound to interpret that language to mean exactly what it says,” and “[i]f the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.” ’ ” Ex parte Alabama Great Southern R.R., 788 So.2d 886, 889 (Ala.2000) (quoting Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala.1998)).

Section 13A-5-9(b)(3), Ala.Code 1975, provides “[i]n all cases when it is shown that a criminal defendant has been previously convicted of any two felonies and after such convictions has committed another felony, ...: [o]n conviction of a Class A felony, he or she must be punished by imprisonment for life or for any term of not less than 99 years.” (Emphasis added.) The statute sets the maximum sentence at life and the minimum sentence at 99 years. Further, by using the phrase “any term of not less than 99 years” the legislature clearly authorized circuit courts to sentence an individual to any term of years between 99 years and life in prison. Thus, § 13A-5-9(b)(3) provides that the sentencing range for an individual who has two prior felony convictions and is convicted of a Class A felony is 99 years to life. The language is plain and unambiguous and leaves no room for judicial interpretation. See Ex parte Alabama Great Southern R.R. Co., 788 So.2d at 889; Nielsen, 714 So.2d at 296; Ex parte Pratt, 815 So.2d at 535.

Applying the plain language of § 13A-5-9(b)(3), Lane’s sentence of 120 years in prison is within the statutory range of sentences available to individuals convicted of a Class A felony with two prior felonies. Lane’s 120-year sentence, which leaves him eligible for parole, does not exceed a sentence of life in prison. Cf. Kyzer v. State, 484 So.2d 1202, 1203 (Ala.Crim.App.1986) (refusing to review an inmate’s 10,-000-year sentence when the statute under which the inmate was sentenced authorized a sentence of life in prison and the inmate’s 10,000-year sentence, which left him eligible for parole, did not exceed a sentence of life). Likewise, Lane’s 120-year sentence does not fall below 99 years. Thus, Lane’s 120-year sentence is within the range of sentences authorized by § 13A-5-9(b)(3). Cf. Smelcher v. State, 520 So.2d 229, 230 (Ala.Crim.App.1987) (failing to find a sentencing defect in the appellant’s 120-year sentence for rape).

Despite the unambiguous language contained in § 13A-5-9(b)(3), the plurality has chosen to read the phrase “life or for any term of not less than 99 years” as authorizing either a sentence of 99 years or a sentence of life. To come to its conclusion, the plurality rejects the unambiguous phrase “any term not less than 99 years.” By rejecting the phrase “any term not less,” the plurality has limited the range of punishments allowed under the plain language of the statute, i.e., 99 years to life. See Fuller v. Associates Commercial Corp., 389 So.2d 506, 509 (Ala.1980) (holding that “[e]ourt[s] must give effect to the legislature’s choice of the word ‘any’ rather than judicially rewriting the statute.... ”).

In support of its holding that § 13A-5-9(b)(3) authorizes only a sentence of 99 years or a sentence of life in prison, the plurality cites Smith v. State, 447 So.2d 1327 (Ala.Crim.App.1983) (“Smith I”), aff'd, Smith v. State, 447 So.2d 1334 (Ala.1984) (“Smith II”), and Rule 14.4, Ala. R.Crim. P. However, neither Smith I and Smith II nor Rule 14, Ala. R.Crim. P., justify the plurality’s rejection of the plain language contained § 13A-5-9(b)(3). In Smith I, this court held that Smith’s 45-year sentence for a Class C felony exceeded the maximum allowed by law. Smith I, 447 So.2d at 1332-34. Smith was convicted of manslaughter, a Class C felony, through the use of a firearm or deadly weapon. Id. Because Smith was convicted of a Class C felony, the statutory sentencing range for his crime was “‘not more than 10 years or less than 1 year and 1 day.’ ” Id. at 1332 (quoting § 13A-5-6(a)(3), Ala.Code 1975). However, § 13A-5-6(a)(5), Ala.Code 1975, provided that the sentence for “a Class B or C felony in which a firearm or deadly weapon was used [shall be] not less than 10 years.” The circuit court, construing § 13A-5-6(a)(5) — which set a minimum sentence of 10 years — as the only restriction on its sentencing authority, sentenced Smith to 45 years in prison.

On appeal, Smith argued that § 13A-5-6(a)(5), Ala.Code 1975, is unconstitutional because it set the minimum sentence for a Class C felony in which a firearm or deadly weapon was used at 10 years but failed to set a maximum sentence. This court rejected Smith’s argument that § 13A-5-6(a)(5), Ala.Code 1975, failed to set a maximum sentence. Specifically, this court recognized that § 18A-5-6(a)(S), Ala.Code 1975, provided that the sentencing range for a Class C felony is “not more than 10 years or less than 1 year and 1 day.” This court further recognized that the firearm enhancement contained in § 13A-5-6(a)(5) only increased the minimum sentence required by law to 10 years and had no affect on the maximum sentence of 10 years established in § 13A-5-6(a)(8). Thus, when these two “ ‘[p]arts of the same statute are [read] in pari materia, ’ Smith I, 447 So.2d at 1333 (quoting Darks Dairy, Inc. v. Alabama Dairy Comm’n, 367 So.2d 1378, 1380-81 (Ala.1979) (emphasis added)), a “10-year-term is both the minimum and maximum sentence which can be imposed for a Class C felony,” Smith II, 447 So.2d at 1336, and Smith’s 45-year sentence exceeded the 10-year maximum.

This court’s holding in Smith I, however, has no application to Alabama’s Habitual Felony Offender Act. Unlike the firearm or deadly-weapon enhancement contained in § 13A-5-6(a)(5), which affects only the minimum sentence for Class B and Class C offenders, Alabama’s Habitual Felony Offender Act enhances both the minimum and the maximum sentences available for habitual felons. Compare § 13A-5-6(a)(5) (the sentence for “a Class B or C felony in which a firearm or deadly weapon was used [shall be] not less than 10 years ” (emphasis added)) with § 13A-5-9(b)(3), Ala.Code 1975 (“On conviction of a Class A felony, [the defendant] must be punished by imprisonment for life or for any term of not less than 99 years.” (emphasis added)). More importantly, unlike the firearm or .deadly-weapon enhancement contained in § 13A-5-6(a)(5), which contains no maximum sentence and thus must be read in pari materia with subsection (a)(3) of the same statute to ascertain both a maximum and minimum range of sentences, § 13A-5-9(b)(3), Ala.Code 1975, specifies both a minimum and a maximum sentence, i.e., 99 years to life. Accordingly, unlike the firearm or deadly-weapon enhancement, there is no need to read § 13A-5-9(b)(3), Ala.Code 1975, in pari materia with other statutes to ascertain the statutory minimum and maximum sentence.

Because § 13A-5-9(b)(3), Ala.Code 1975, increases both the statutory minimum sentence and the statutory maximum sentence, the holdings in Smith I and Smith II do not apply.

Likewise, the plurality’s attempt to buttress its rejection of the plain language contained in § 13A-5-9(b)(3), Ala.Code 1975, with the requirements outlined in Rule 14, Ala. R.Crim. P., is unpersuasive. According to the plurality:

“[Its] interpretation [of § 13A-5-9(b)(3) ] is consistent with Rule 14.4, Ala. R.Crim. P., the Rule governing the acceptance of a guilty plea. We have consistently held that a defendant must be apprised of the correct minimum and maximum sentence before pleading guilty. See White v. State, 4 So.3d 1208 (Ala.Crim.App.2008); Gordon v. State, 692 So.2d 869 (Ala.Crim.App.1996). This right is incorporated into Rule 14.4(a)(1)(ii), Ala. R.Crim. P., which states that before pleading guilty the defendant must be advised of ‘[t]he mandatory minimum penalty, if any, and the maximum possible penalty provided by law, including any enhanced sentencing provisions.’ The ‘Explanation of Rights and Plea of Guilty Form,’ attached as an appendix to the Alabama Rules of Criminal Procedure, sets out the sentence range for a Class A felony where there are two prior felony convictions as ‘life imprisonment or any term of years not less than 99.’ Rule 14.4(d), Ala. R.Crim. P., further states that ‘[t]he court may comply with the requirements of Rule 14.4(a) by determining from a personal colloquy with the defendant that the defendant has read, or has had read to the defendant, and understands each item contained in Form C-44B, CR-51, CR-52, or Form CM4A, as the case may be.’ See also Carter v. State, 853 So.2d 1040, 1041 (Ala.Crim.App.2002) (‘The maximum sentence for a conviction of first-degree robbery, a Class A felony, with two prior felony convictions, is life imprisonment or imprisonment for a term of not less than 99 years.’); Craig v. State, 645 So.2d 349, 351 (Ala.Crim.App.1994) (‘Assuming that Craig had had two prior felony convictions, the sentence for a first degree robbery conviction would have been life imprisonment or a term of not less than 99 years.’).”

66 So.3d at 818.

The plurality, however, fails to explain how interpreting § 13A-5-9(b)(3) to allow only a sentence of 99 years or a sentence of life is consistent with “Explanation of Rights and Plea of Guilty Form,” attached as an appendix to Rule 14.4, Ala. R.Crim. P. As the plurality recognizes, the appendix sets out the sentence range for a Class A felony where there are two prior felony convictions as “life imprisonment or any term of years not less than 99 years.” (emphasis added). It is inconceivable that an individual who is informed that the sentencing range pursuant to § 13A-5-9(b)(3) is “life imprisonment or any term of years not less than 99 years” would be unaware that the maximum sentence that individual faces is life, the minimum sentence that individual faces is 99 years, and the circuit court may, within its discretion, sentence that individual to any term in between 99 years and life.

Because the plain language of § 13A-5-9(b)(3), Ala.Code 1975, unambiguously sets the sentencing range for a Class A felony where there are two prior felony convictions at “life imprisonment or any term of years not less than 99,” the plurality has failed to “give effect to the legislature’s choice of the word ‘any’ [and thus has] judicially rewritten] the statute.” Fuller, 389 So.2d at 509. Accordingly, I must respectfully dissent from this court’s decision to overturn Lane’s 120-year sentence.

MAIN, Judge,

concurring in part and dissenting in part.

I concur as to Part I of the opinion.

I dissent as to Part II of the opinion.

Carlton Reashard Lane was convicted of a Class A felony and was sentenced to 120 years in prison pursuant to the Habitual Felony Offender Act (“HFOA”) as a habitual offender with two prior felony convictions. The HFOA provides, in pertinent part: “On conviction of a Class A felony, [the defendant] must be punished by imprisonment for life or for any term of not less than 99 years.” § 13A-5-9(b)(3), Ala. Code 1975 (emphasis added).

The reliance in the main opinion on Smith v. State, 447 So.2d 1327 (Ala.Crim.App.1983), and Smith v. State, 447 So.2d 1334 (Ala.1984), is not persuasive. Smith was sentenced to 45 years’ imprisonment for his conviction for a Class C felony, enhanced pursuant to the firearm-enhancement statute. See §§ 13A-5-6(a)(3) and 13A-5-6(a)(5), Ala.Code 1975. The courts properly recognized that the firearm enhancement increased only the minimum possible punishment but still fell within the constraints of the maximum possible punishment as set out in other subsections of the same statute.

However, unlike the firearm enhancement at issue in Smith, the HFOA is not contained in § 13A-5-6, but rather is codified as a separate statute at § 13A-5-9. Further, the recidivist statute at § 13A-5-9 contains clear and unambiguous language evidencing the Alabama Legislature’s intent that offenders sentenced under the HFOA be subjected to a different range of punishment than those sentenced pursuant to the general felony range in § 13A-5-6. If § 13A-5-9 must be read in ■pari materia with § 13A-5-6 and interpreted in the manner expressed in the main opinion to reach the conclusion reached in the main opinion, then arguably the overwhelming majority of the subsections of the HFOA are invalid because all but one of those subsections increase the minimum and maximum range of punishment above that contained in § 13A-5-6. Sections 13A-5-9(a)(l), (b)(1), and (c)(1), each increase the maximum punishment above that prescribed in § 13A-5-6(a)(3), for a conviction for a Class C felony. Sections 13A-5-9(a)(2), (b)(2), and (c)(2), each increase the maximum punishment above that prescribed in § 13A-5-6(a)(2) for a conviction for a Class B felony. Sections 13A-5-9(c)(3) and (c)(4) each increase the maximum punishment above that prescribed in § 13A-5-6(a)(l) for a conviction for a Class A felony. Only § 13A-5-9 (a)(3) (“On conviction of a Class A felony, [the defendant] must be punished by imprisonment for life or for any term of not more than 99 years but not less than 15 years.”) raises the minimum punishment without deviating from the maximum punishment expressed in § 13A-5-6(a)(l).

The language in the statute is unambiguous. Applying the well settled principles of statutory construction, I must conclude that the plain language of the statute sets a minimum punishment (some numerical term of years not less than 99, without placing any numerical cap on the sentence that may be imposed), and a maximum punishment (life in prison). Any other construction of this statute would require the removal of the words “for any term of not less than.” Thus, I believe that the 120-year sentence imposed in this case is •within the statutory range of punishment.

Finally, because I do not believe that the 120-year sentence is illegal, I do not address the dictum regarding Rule 14.4, Aa. R.Crim.P., and the acceptance of guilty pleas set out in the main opinion.

For these reasons, I respectfully dissent from Part II of the main opinion. Rather than remanding this case for the trial court to impose a new sentence, I would instead address the merits of Lane’s claim that his 120-year sentence constituted cruel and unusual punishment, and, because I believe that claim to be without merit, I would affirm Lane’s conviction and sentence.

On Return to Remand

PER CURIAM.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WISE, P.J., and WELCH and KELLUM, JJ., concur; WINDOM and MAIN JJ., concur in part and dissent in part, with opinions.

WINDOM, Judge,

concurring in part and dissenting in part.

I concur in affirming Lane’s conviction. For the reasons stated in my writing on original submission, I disagree with the plurality’s decision to overturn Lane’s 120-year sentence and to remand the case for re-sentencing. I, therefore, dissent from the affirmance of Lane’s sentence on return to remand.

MAIN, Judge,

concurring in part and dissenting in part.

I concur in affirming Carlton Reashard Lane’s conviction. For the reasons stated in my writing on original submission, I dissent as to the propriety of instructing the trial court to resentence Lane.

On Applications for Rehearing

PER CURIAM.

APPLICATIONS OVERRULED; NO OPINION.

WISE, P.J., and WELCH and KELLUM, JJ., concur; WINDOM, J., concurs in part and dissents in part; MAIN, J., concurs in part and dissents in part, with opinion.

MAIN, Judge,

concurring in part and dissenting in part.

I concur with the overruling of the application for a rehearing filed by Carlton Reashard Lane. However, for the reasons stated in my writing on original submission, I continue to disagree with the propriety of instructing the trial court to re-sentence Lane. Therefore, I dissent as to the overruling of the State’s application for a rehearing. • 
      
      . Chick was also charged with murder for the killing of Toson. In exchange for his testimony at Lane’s trial, Chick agreed to plead guilty and the State would recommend a sentence of 20 years.
     
      
      . Other grounds were presented as to why Talley should testify, but those grounds are not pursued on appeal.
     
      
      . Although in his brief Lane concedes that his sentence falls within the range provided by-statute, a party cannot agree or consent to waive a jurisdictional defect. See Bradley v. State, 925 So.2d 232, 241 (Ala.2005).
     
      
      . Even if § 13A-5-9(b)(3), Ala.Code 1975, did not explicitly set the maximum sentence at life, which it does, the maximum sentence available under that statute would be life. See Ex parte Robinson, 474 So.2d 685, 686 (Ala.1985) (holding that a sentence of life in prison is the maximum when a statute explicitly sets a minimum sentence but fails to set a maximum).
     
      
      . The only sentences greater then life in prison are life in prison without the possibility of parole and death.
     
      
      . I believe that § 13A-5-9(b)(3) also increases the maximum possible punishment above that set out in § 13A-5-6(a)(l); the main opinion does not believe that § 13A-5-9(b)(3) increases the maximum possible punishment above that set out in § 13A-5-6(a)(l).
     