Bracewell v. State , 401 So. 2d 130 ( 1981 )

401 So.2d 130 (1981)

Ex parte State of Alabama.
(Re Debra BRACEWELL, alias
v.
STATE of Alabama).

80-535.

Supreme Court of Alabama.

June 25, 1981.

Charles A. Graddick, Atty. Gen., and James F. Hampton, Sp. Asst. Atty. Gen., for the State.

No brief for respondent.

PER CURIAM.

The opinion dated June 19, 1981, is withdrawn and the following, together with Justice Maddox's special concurring opinion, is substituted in its place.

WRIT DENIED.

TORBERT, C. J., and SHORES and BEATTY, JJ., concur.

MADDOX and JONES, JJ., concur specially.

MADDOX, Justice (concurring specially).

By denying the writ of certiorari in this case, I assume that the Court of Criminal Appeals, after reviewing the record in this case, has determined that there was some evidence presented on a lesser included offense, or that the record of trial does not affirmatively preclude evidence of a lesser included offense (Cf. Ritter v. State, 403 So.2d 154 (Ala.1981), view of Maddox, Jones and Adams, JJ.), which would have entitled the accused to an instruction on a lesser included offense.

JONES, J., concurs.