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HOUSTON v. STATE6/19/1998
AFFIRMED BY UNPUBLISHED MEMORANDUM
McMillan, Brown, and Baschab, JJ., concur; Cobb, J., concurs in part and dissents in part with opinion.
I dissent from the majority's holding in Part III of its unpublished memorandum. I joined Judge Long's dissent on rehearing in State v. Parker, 740 So.2d 421 (Ala.Cr.App. 1996), opinion on rehearing, 740 So.2d 424 (Ala.Cr.App. 1997). I agree with Judge Long's statement in his dissent in Parker that "the application of subsection 32-5A-191(f) [now subsection (h)] does not require a defendant's prior DUI convictions to be alleged in the charging instrument or proved to the jury and that, unless some exception is applicable in a particular case, evidence of the prior DUI convictions should not be presented to the jury." 740 So.2d at 429 (Long, P. J., dissenting).
Although I am well aware that the majority has held otherwise, I nevertheless maintain that "subsection (f) [now (h)] is a sentence enhancement provision which requires that a defendant's prior DUI convictions be proven to the trial court at
sentencing — only after there has been a determination of guilt in the underlying offense." 740 So.2d at 429. Until the Alabama Supreme Court rules on this matter, I feel compelled to respectfully dissent from part III of the unpublished memorandum.
COBB, JUDGE, Concurring in Part, and Dissenting in Part.
Page 1 Alabama DUI Attorneys
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