Baker v. State

I agree that the circuit court's denial of Baker's Rule 32 petition should be affirmed. I disagree, however, with using this affirmance as a vehicle to overrule Ash v. State, [CR-98-2451, December 30, 1999] ___ So.2d ___ (Ala.Crim.App. 1999). The main opinion characterizes the holding of Ash as "a variance between an indictment and a trial court's oral charge is jurisdictional." Baker v. State, 819 So.2d 87, 89 (Ala.Crim.App. 2001). This overstates the holding in Ash. In Ash, the trial court's instruction to the jury allowed the jury to find the defendant guilty under either of two…