¶2Because this case is factually indistinguishable from Edgar v.State, 646 So.2d 683 (Ala. 1994), we do not have the authority to "authorize a more workable procedure for dealing with a hearing on a motion for a new trial conducted after the expiration of the 60-day period in Rule 24.4[, Ala. R.Crim. P]."879 So.2d at 613. The Alabama Supreme Court promulgated Rule 24.4, Ala. R.Crim. P., and decided Edgar, and we are bound by its decisions. See § 12-3-16, Ala. Code 1975. Furthermore, the majority's decision conflicts with Heard v. State, [Ms. CR-01-1810, August 9, 2002] ___ So.2d ___, ___ (Ala.Crim.App. 2002), in which we stated:
¶3 "[A] motion for a new trial filed pursuant to Rule 24, Ala. R.Crim. P., is deemed denied by operation of law if not ruled on within 60 days from the date of sentencing or if not continued to a date certain upon agreement of the parties and entered of recordbefore the 60-day time period expires.
¶4 "A nunc pro tunc order `cannot be used to enlarge or modify a judgment or to make a judgment say something other than what was originally said.' McGiboney v.McGiboney, 679 So.2d 1066, 1068 (Ala.Civ.App. 1995). The trial court's order attempted to correct a jurisdictional defect, i.e., to restore jurisdiction to the trial court after the posttrial motion had been denied by operation of law pursuant to Rule 24.4, Ala. R.Crim. P. State v. Property at 2018Rainbow Drive, 740 So.2d 1025 (Ala. 1999). The circuit court's order was void. Any order attemptingto extend the 60-day period provided by Rule 24.4,Ala. R.Crim. P., must be entered before the 60-dayperiod expires. Ex parte Caterpillar, Inc., supra [708 So.2d 142 (Ala. 1997)]."
¶5(Emphasis added.) Finally, parties to an action cannot impliedly consent to, and thereby waive, a jurisdictional defect. Based on the Alabama Supreme Court's decision in Edgar, we should remand this case to the trial court for that court to conduct a new hearing. Therefore, I concur in the result. *615
¶7I agree to remand this case to the trial court, although not for the reason stated by the majority. Based on the record certified to this Court, which contains no indication of an express agreement between the prosecutor and the defendant or the defendant's counsel to carry the motion past the sixtieth day to a date certain, I would remand this case for the trial court to conduct another evidentiary hearing on the motion for a new trial in accordance with the Alabama Supreme Court's opinion in Edgarv. State, 646 So.2d 683 (Ala. 1994), a case materially indistinguishable from the present case.
¶8Furthermore, I note that to the extent the majority may be instructing the trial court to "consider the parties' implied consent, that is, their failure to object to the untimeliness of the hearing, as evidence of their express consent to carry the motion for a new trial past the sixtieth day," 879 So.2d at 613, such an instruction cannot be reconciled with the plain language of Rule 24.4, Ala.R.Crim.P. See Personnel Bd. for Mobile Countyv. Bronstein, 354 So.2d 8 (Ala.Civ.App. 1977), in which the Court of Civil Appeals discussed the "express consent" requirement of Rule 59.1, Ala.R.Civ. P., and Black's LawDictionary 305 (6th ed. 1990), defining "express consent" as "[t]hat directly given, either viva voce or in writing. . . . positive, direct, unequivocal consent, requiring no inference or implication to supply its meaning."3 See also Harrisonv. Alabama Power Co., 371 So.2d 19, 20-21 (Ala. 1979) ("The consent or assent to a continuance of a hearing does not satisfy the requirement that the record show the parties' expressconsent to an extension of the 90-day period" under Rule 59.1.).