
    STATE of Alabama v. Mark Dewayne ADAMS.
    CR-06-1184.
    Court of Criminal Appeals of Alabama.
    May 1, 2009.
    Troy King, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellant.
    
      Donald Alan Chapman, Decatur, for ap-pellee.
   On Remand, from the Alabama Supreme Court

McMILLAN, Retired Appellate Judge.

Pursuant to the Alabama Supreme Court’s decision in State v. Adams, 23 So.3d 1104 (Ala.2009), this court’s unpublished memorandum issued on February 1, 2008, which dismissed the State’s appeal, is hereby withdrawn.

On appeal, the State contends that the circuit court erred in ruling that Adams’s prior DUI convictions in the municipal court could not be used to enhance his sentence for the current DUI offense. In Ex parte Holbert, 4 So.3d 410 (Ala.2008), the Alabama Supreme Court held that pri- or in-state DUI convictions in a municipal court do not count toward the total number of prior DUI convictions necessary to constitute a felony DUI offense. Therefore, the trial court properly determined that Adams’s three municipal-court convictions could not be used to elevate his current offense to felony DUI.

For the foregoing reasons, we affirm the circuit court’s dismissal of the portion of the indictment alleging a felony DUI offense and remand the cause to that court for proceedings consistent with this opinion.

The foregoing opinion was prepared by Retired Appellate Judge H.W. “Bucky” McMillan while serving on active-duty status as a judge of this court under the provisions of § 12-18-10(e), Ala.Code 1975.

UNPUBLISHED MEMORANDUM OF FEBRUARY 1, 2008, WITHDRAWN; AFFIRMED AS TO DISMISSAL OF PORTION OF INDICTMENT; AND REMANDED.

AVISE, P.J., and AVELCH, AVTNDOM, and KELLUM, JJ., concur.  