State v. Shaver9/17/1999
On March 5, 1999, the Montgomery County Grand Jury indicted Michael Shaver for driving under the influence of alcohol (DUI), in violation of § 32-5A-191(a), Ala. Code 1975, after having been convicted of DUI on three prior occasions, a violation of § 32-5A-191(h), Ala. Code 1975. On March 15, 1999, Shaver waived arraignment and pleaded not guilty. (C.R. 8.) On April 2, 1999, Shaver filed a motion to dismiss the indictment, claiming that the circuit court "lack jurisdiction over the person and the charged offense by subject matter." (C.R. 11). On April 9, 1999, a hearing was held before the circuit court. Shaver argued, based on the Alabama Supreme Court's holding in Ex parte Parker, [Ms. 1970001, February 26, 1999] ___ So.2d ___ (Ala. 1999), that § 32- 5A-191(h), Ala. Code 1975, did not create a substantive felony offense, and that pursuant to § 12-12-51, Ala. Code 1975, jurisdiction over his offense rested in the district court. Ex parte Parker held that the prior DUI convictions could be used only for enhancement purposes in the prosecution of a fourth or subsequent DUI offense. The State argued that the circuit court had jurisdiction based on the Supreme Court's holding in Ex parte Johnston, [Ms. 1970281, February 26, 1999] ___ So.2d ___ (Ala. 1999), which, by upholding the trial court's judgment, implicitly approved of prosecuting a fourth or subsequent DUI offense in the circuit court. Additionally, the State moved to amend the indictment to remove the language indicating that the defendant had prior DUI convictions, to conform with the holding in Ex parte Parker. The circuit court dismissed the indictment, stating: "Based on [Ex parte Parker], this Court is without jurisdiction to hear said case." (C.R. 1.) From that order, the State appeals.
The State contends that the trial court abused its discretion by dismissing the indictment against Shaver because, it says, if the circuit court was without jurisdiction to hear the case, it should have transferred the case to district court for Disposition, rather than dismiss the indictment. (State's brief at pp. 5-7.)
Shaver's indictment charged him with driving under the influence of alcohol, a violation of § 32-5A-191(a), Ala. Code 1975, after having been convicted of three prior DUI offenses, a violation of § 32- 5A-191(h), Ala. Code 1975. Section 32-5A-191(h), Ala. Code 1975, provides:
"On a fourth or subsequent conviction, a person convicted of violating this section shall be guilty of a Class C felony and punished by a fine of not less than four thousand one hundred dollars ($4,100) nor more than ten thousand one hundred dollars ($10,100) and by imprisonment of not less than one year and one day nor more than 10 years. ...
"Any law to the contrary notwithstanding, the Alabama habitual felony offender law shall not apply to a conviction of a felony pursuant to this subsection, and a conviction of a felony pursuant to this subsection shall not be a felony conviction for purposes of the enhancement of punishment pursuant to Alabama's habitual felony offender law." (Emphasis added.)
Since the enactment of § 32-5A-191(h), Ala. Code 1975 (formerly § 32-5A-191(f), Ala. Code 1975), which established a felony punishment for persons convicted of a fourth or subsequent DUI offense, a great deal of confusion has arisen as to how to treat prosecutions of persons who are being charged with a fourth or subsequent DUI offense.
In order to better understand the problem, a brief history of the procedures used in the municipal, district, and circuit courts for a defendant who has committed a fourth or subsequent DUI offense follows.
When a law enforcement officer issues a ticket for a D
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