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REL:04/25/2008 Wilson v. State

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 2007-2008 _________________________ CR-06-0887 _________________________ Darryl Eugene Wilson v. State of Alabama Appeal from Lauderdale Circuit Court (CC-06-123) On Application for Rehearing SHAW, Judge.

UNPUBLISHED MEMORANDUM OF FEBRUARY 1, 2008, WITHDRAWN; MEMORANDUM SUBSTITUTED; APPLICATION OVERRULED; AFFIRMED BY UNPUBLISHED MEMORANDUM. McMillan and Wise, JJ., concur; Baschab, P.J. dissents, with opinion; Welch, J., dissents.

CR-06-0887 BASCHAB, PRESIDING JUDGE, dissenting. The record in this case does not affirmatively establish that the appellant "had notice of the time and place of the proceeding and was informed of his right to be present" and that he made "an understanding and voluntary waiver of the right to be present," as is required by Rule 9.1(b)(ii), Ala. R. Crim. P. Therefore, the trial court improperly tried him

in absentia, and I respectfully dissent.

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