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Form-by v. State8/27/1999
la. Cr. App. 1997), this Court held that an indictment for felony D.U.I. should contain reference to the three prior D.U.I. convictions because those convictions are a material element of the offense." Form-by v. State, [Ms. CR-96-0204, December 19, 1997] ___ So. 2d ___, ___ (Ala. Crim. App. 1997).
This is the issue of law at the heart of this Court's opinion in Parker. The Court of Criminal Appeals noted that while Form-by objected in limine to having evidence of his prior DUI convictions admitted into evidence, and while he objected during the trial to the admission of the evidence of his prior convictions, he did not assert, when he objected during the trial, that he was objecting for the same reasons he had objected to the court's reading the indictment to the jury. Nonetheless, as a result of this Court's Parker decision, introducing evidence of prior DUI convictions during the guilt phase of a trial will be deemed prejudicial and reversible error. This Court, accordingly, on original submission, reversed the judgment of the Court of Criminal Appeals in Form-by, on the authority of Parker.
Conclusion
The State has not convinced us that our holding on original submission was erroneous. In summary, the short answer to the State's first question is that the Legislature's enactment of § 32-5A-191(h) made jurisdiction over a fourth or subsequent DUI charge appropriate in the circuit court, because the offense charged--a fourth or subsequent DUI offense--is a felony. This Court's decision in Parker had no impact on that jurisdictional issue. Prosecutions for felony DUI offenses should have been, and should continue to be, in the circuit court.
The indictment gave Form-by appropriate notice of the charges against him. Because the indictment charged him with a felony, it was appropriate for the prosecution to proceed in the circuit court. We reversed because the prosecution was allowed, during the guilt phase of Form-by's trial, to present evidence of three prior DUI convictions; under Parker, that was reversible error.
We reiterate that Parker stands for the proposition that a conviction for a fourth or subsequent DUI is a felony conviction. Further, as we held in Parker, it is reversible error for a jury, during the guilt phase of a trial, to be presented with evidence of the defendant's prior DUI convictions. The prior convictions are not to be considered until after the jury has passed on the question of the defendant's guilt.
APPLICATION OVERRULED.
Hooper, C.J., and Houston , Cook, Lyons, and Johnstone, JJ., concur.
Brown, J., recuses herself.
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