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Blevins v. State6/22/1998
Appeal from Lawrence Circuit Court (CC-95-280)
The appellant, Michael Blevins, was convicted of the felony offense of driving while under the influence of alcohol (D.U.I.), a violation of § 32-5A-191(f), Ala. Code 1975, and driving while his license was revoked, a violation of § 32-6-19, Ala. Code 1975. He was sentenced to 8 years' imprisonment and was fined $4,000 for the D.U.I. conviction; he was sentenced to 100 days' imprisonment in the county jail and was fined $25 for the conviction of driving while his license was revoked.
Although the issue of the trial court's jurisdiction was not raised below or on appeal, we must take notice that the trial court lacked jurisdiction to try Blevins's case. See Nunn v. Baker, 518 So.2d 711, 712 (Ala. 1987) (" urisdictional matters are of such magnitude that [appellate courts] take notice of them at any time and do so even ex mero motu.").
The indictment returned against Blevins stated, in pertinent part, as follows:
"COUNT I: The Grand Jury of said County charge that before the finding of this Indictment, MICHAEL BLEVINS, on or about January 31, 1995, did drive or was in actual physical control of a motor vehicle while he was under the influence of alcohol, in violation of § 32-5A-191(f) of the Code of Alabama,
"COUNT II: The Grand Jury of said County further charge that before the finding of this Indictment MICHAEL BLEVINS did unlawfully drive a motor vehicle upon a highway of this County and State after his driver's license had been lawfully cancelled, suspended or revoked by the Director of Public Safety of the State of Alabama, in violation of § 32-6-19, of the Code of Alabama."
(C. 5.)
In Eskridge v. State, [Ms. CR-95-1704, December 19, 1997] ___ So.2d ___ (Ala.Cr.App. 1997), this court held that an indictment identical in all material respects to the one returned against Blevins failed to confer jurisdiction on the circuit court to try the defendant's case, because Count I of the indictment, which charged the defendant with "felony D.U.I.," failed to specifically charge that the defendant had had three prior D.U.I. convictions within the past five years. We stated:
"In our opinion on application for rehearing in State v. Parker, [(Ms. CR-95-1435, September 27, 1996) ___ So.2d ___ (Ala.Cr.App. 1996), opinion on rehearing (Ms. CR-95-1435, September 26, 1997) ___ So.2d ___ (Ala.Cr.App. 1997)], this Court held that proof of three prior D.U.I. convictions was a material element of the felony offense of driving while under the influence of alcohol as defined at § 32-5A-191(f), now subsection (h), and must be charged in the indictment: 'This Court reaffirms its holding that § 32-5A-191(f), now subsection (h), Code of Alabama 1975, created a substantive felony offense and that the prior convictions for driving under the influence constituted elements thereof, and must be charged in the indictment.' ___ So.2d at ___.
"Because the prior convictions are a material element of 'felony D.U.I.' under what is now § 32-5A-191(h), they must be set out in the charging instrument, and proven to the jury at trial. Accordingly, failure of the indictment to include this element rendered the indictment void, to the extent that it attempted to charge the appellant with 'felony D.U.I.' Instead, the language in the indictment charged the appellant with nothing more than the misdemeanor offense of driving while under the influence of alcohol. Moreover, because the indictment returned against the appellant charged him only with misdemeanor D.U.I. and with driving while his license was revoked -- also a misdemeanor -- the circuit court lacked jurisdiction to convict the appel
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