
    Clarence Edward SHUTE, Jr. v. STATE.
    1 Div. 982.
    Court of Criminal Appeals of Alabama.
    July 21, 1989.
    Clarence Edward Shute, Jr., pro se.
    Don Siegelman, Atty. Gen., and Mary Ellen Forehand, Asst. Atty. Gen., for State.
   TAYLOR, Presiding Judge.

Clarence Edward Shute, Jr., was convicted of possession of pentazocine and was sentenced to 99 years’ imprisonment in May of 1984. We affirmed in Shute v. State, 469 So.2d 670 (Ala.Cr.App.1984), and certiorari was denied.

Shute petitioned for post-conviction relief, pursuant to Rule 20, A.R.Crim.P. Temp., in January, 1989. He claimed that he was unlawfully sentenced under the Habitual Felony Offender Act to 99 years. The petition was denied, hence this appeal.

The appellant contends that he is due to be resentenced on the basis of the principle enunciated in Ex parte Chambers, 522 So.2d 313 (Ala.1987). He had five prior drug convictions and was sentenced to 99 years under the Habitual Felony Offender Act. It is clear, however, that he could have been sentenced only under the Controlled Substances Act. The state concedes this in its brief and requests that this case be remanded for a new sentencing proceeding in accordance with § 20-2-76, Code of Alabama 1975.

On the motion, therefore, of both the appellant and the appellee, the present sentence in this case is set aside and this case is remanded to the circuit court for resen-tencing.

REMANDED FOR RESENTENCING.

All the Judges concur.  