# Ex Parte Waldrop > Supreme Court of Alabama · November 22, 2002 · 859 So. 2d 1181 URL: https://www.frixlaw.com/law-library/cases/9932587 ## Case - **Full name:** Ex Parte Bobby Wayne Waldrop. (In Re: Bobby Wayne Waldrop v. State of Alabama). - **Court:** Supreme Court of Alabama - **Decided:** November 22, 2002 - **Citations:** 859 So. 2d 1181; 2002 WL 31630710 - **Precedential status:** Published - **Opinion:** Dissent by Lyons - **Judges:** Brown, Johnstone, Lyons, See, Stuart - **Cited by:** 153 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9932587 ## How later opinions describe it (automated extraction) - holding that “the determination whether the aggravating circumstances outweigh the mitigating circumstances is not a finding of fact or an element of the offense. Consequently, Ring and Appren-di do not require that a jury weigh the aggravating circumstances and the mitigating… - holding that “[although not required by Harris, ... Alabama’s statutory procedures d[o] guard against an arbitrary and capricious [imposition of a sentence of death] by a trial court....” ## Opinion text I join part I of the main opinion. I write specially to address further Waldrop's contention that the trial court's finding of fact that the capital offense was "especially heinous, atrocious or cruel compared to other capital offenses," § 13A-5-49 (8), Ala. Code 1975, violated his right to a trial by jury under the United States Constitution. A plurality of the Justices on the United States Supreme Court in Harris v. United States , 536 U.S. 545 , *Page 1197 122 S.Ct. 2406 (2002), released the same day as Ring v. Arizona , 536 U.S. 584 , 122 S.Ct. 2428 (2002), stated: "Basing a 2-year increase in the defendant's minimum sentence on a judicial finding of brandishing does not evade the requirements of the Fifth and Sixth Amendments." 536 U.S. at 568 , 122 S.Ct. at 2420 . A dissenting opinion, joined by three other Justices, observed: "According to the plurality, the historical practices underlying the Court's decision in Apprendi[v. New Jersey , 530 U.S. 466 (2000),] with respect to penalties that exceed the statutory maximum do not support extension of Apprendi 's rule to facts that increase a defendant's mandatory minimum sentence. Such fine distinctions with regard to vital constitutional liberties cannot withstand close scrutiny." 536 U.S. at 574 , 122 S.Ct. at 2423 . At a later point the dissenting opinion states: "Thus, it is ultimately beside the point whether as a matter of statutory interpretation brandishing is a sentencing factor, because as a constitutional matter brandishing must be deemed an element of an aggravated offense. See Apprendi , supra , at 483, n. 10, 120 S.Ct. 2348 (`[F]acts that expose a defendant to a punishment greater than that otherwise legally prescribed were by definition "elements" of a separate legal offense')." 536 U.S. at 576 , 122 S.Ct. at 2424 . Until the dissenting opinion in Harris becomes the law of the land, I must reject Waldrop's argument that the trial court's finding that the offenses were "especially heinous, atrocious or cruel compared to other capital offenses" is a finding of fact that must be determined by a jury. As to part II, I respectfully dissent. I would remand to the trial court for further proceedings in light of Ex parte Taylor , 808 So.2d 1215 (Ala. 2001), cert. denied , 534 U.S. 1086 , 122 S.Ct. 824 (2002); and Ex parte Carroll , 852 So.2d 821 (Ala. 2001). The fact that the judge who tried this case is no longer in active service should not justify disregard of the necessity for remand. I join Justice Johnstone's thorough review of this issue in his special writing. WOODALL, J., concurs. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9932587. Public record. Not legal advice.