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Form-by v. State8/27/1999
Ex parte Stanley Form-by
PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS
On Application for Rehearing
In its application for rehearing the State presents two issues. The State's application is due to be overruled, but we will explain our reasons.
Facts and Procedural History
On November 24, 1995, Stanley Form-by was stopped by a Riverside police officer and was arrested for driving under the influence of alcohol. In June 1996, the St. Clair County grand jury returned a two-count indictment against Form-by. Before the trial, the defendant moved to require that the State elect which of the two charges it would proceed on, and Judge Robert Austin granted that motion.
The State elected to proceed on Count II, which charged:
"The Grand Jury of [St. Clair] County charges that before the finding of this indictment, STANLEY FORM-BY, whose true name is otherwise unknown to the Grand Jury, after having been convicted of three (3) prior Driving Under the Influence Violations within the past five (5) years, did on or about November 24, 1995, drive or was in actual physical control of a vehicle on a highway in St. Clair County while under the influence of alcohol to a degree which rendered him incapable of safely operating a motor vehicle, in violation of Section 32-5A-191(a)(2) of the Code of Alabama."
Form-by objected to Count II, arguing that allowing the jury to be informed of his prior DUI convictions in the guilt phase of his trial would be prejudicial and would bias the jury against him. The trial Judge overruled that objection. During its case-in-chief, the state admitted evidence of Form-by's three prior convictions, and the jury subsequently found him guilty. The trial Judge sentenced him to four years in prison.
The Court of Criminal Appeals affirmed Form-by's conviction and sentence. This Court, on April 9, 1999, reversed on the authority of Ex parte Parker, [Ms. 1970001, February 26, 1999] ___ So. 2d ___ (Ala. 1999).
Discussion
I.
The State's first issue presented in its rehearing application, the answer to which is dispositive, is:
"Does the Parker decision render Form-by's conviction, and the convictions of all others similarly situated, void for lack of jurisdiction because they are based on indictments which originated in the Circuit Court when the District Court has exclusive original jurisdiction of misdemeanor prosecutions for traffic infractions?"
(State's application for rehearing, at 2.) Our review of the State's brief indicates that the state may be laboring under the mistaken inference that in Parker this Court held that a "felony DUI," i.e., a fourth or subsequent DUI conviction, is actually a misdemeanor.
The State argues:
"The question raised by this Court's application of Parker to this case presents this Court with the opportunity to clarify the application of Parker. The first question is whether this Court's holding in Parker renders void all convictions in circuit courts for felony DUIs, because the circuit courts had no jurisdiction over misdemeanor traffic infractions."
(State's brief and argument in support of application for rehearing, at 8.) We accept the State's invitation to clarify Parker.
In Parker, we held:
"Section 32-5A-191, plainly read, compels the Conclusion that the provisions of the present subsection (h) were intended to declare certain DUI convictions to be felony convictions ...." Ex parte Parker, ___ So. 2d at ___ (emphasis added).
The Code subsection in question provides:
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