Ex Parte State

481 So. 2d 1154 (1986)

Ex parte State of Alabama (Re: Kenneth WHIRLEY v. STATE of Alabama).

84-496.

Supreme Court of Alabama.

January 10, 1986.

Charles A. Graddick, Atty. Gen., and M. Beth Slate, Asst. Atty. Gen., for petitioner.

J. Robert Faulk, Prattville, for respondent.

HOUSTON, Justice.

Because the State of Alabama has conceded that vehicular homicide as provided for in § 32-5A-192, Code 1975, is not a lesser included offense as to murder pursuant to § 13A-6-2, Code 1975, the writ is quashed. See Ex parte Jordan [MS. 84-621, January 10, 1986] (Ala.1986).

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

TORBERT, C.J., and MADDOX, FAULKNER, ALMON, SHORES, BEATTY and ADAMS, JJ., concur.

JONES, J., concurs specially.

JONES, Justice (concurring specially).

I concur in the judgment quashing the writ and allowing the Court of Criminal Appeals' judgment of reversal to stand, 481 *1155 So. 2d 1151, because it is the function of the parties and not of the Court to formulate the issues. The State has conceded the invalidity of the only issue raised in its petition for the writ; thus, nothing is presented for our review.

This does not mean, however, that this Court is bound by the State's concession that vehicular homicide is not a lesser included offense as to murder. Indeed, this Court has this date held that in appropriate factual contexts vehicular homicide (Code 1975, § 32-5A-192) is a lesser included offense as to murder (§ 13A-6-2). Ex parte Jordan, [MS. 84-621, January 10, 1986] (Ala.1986).