¶1concurring specially.
¶2The State, through the Alabama Department of Corrections, filed a brief in this *240case on April 17, 2001. The Alabama Supreme Court announced its decision in Ex parte Berry, 794 So.2d 307 (Ala.2000), on September 1, 2000. Yet the State did not cite or discuss Ex parte Berry in its brief. It is puzzling to me why the State does not cite such an important case in this particular area of the law. Certain members of this Court have been critical of the rationale and the holding in Ex parte Berry, and the State, in previous briefs, has also expressed its displeasure with that decision. However, I have made no comment on the rationale of that decision, and I decline to do so today. Ex parte Berry is the law until the Alabama Supreme Court decides to change it. I am bound by the decisions of that Court, as is the State.