State v. Thrasher9/17/1999
On Application for Rehearing
This Court's unpublished memorandum and Dissenting opinion of September 17, 1999, is withdrawn, and the following opinion is substituted therefor.
On February 21, 1998, Steven Thrasher was arrested for driving under the influence of alcohol ("DUI"), a violation of § 32-5A-191, Ala. Code 1975. On March 4, 1998, the Decatur Municipal Court transferred Thrasher's case to the Morgan County Circuit Court because the municipal court found that Thrasher had at least four prior DUI convictions. On August 21, 1998, the Morgan County grand jury returned an indictment charging Thrasher with felony DUI, a violation of § 32-5A-191(h). On March 9, 1999, the circuit court transferred the case back to the municipal court because it found "that the two prior uncounseled convictions cannot be used by the State to enhance the possible sentence in this felony DUI." (C.R. 10). On March 15, 1999, the state filed this appeal.
The state contends that it does not have to prove that a defendant was represented by counsel or that the defendant knowingly and voluntarily waived counsel in a former DUI misdemeanor proceeding resulting in a conviction in order to use that DUI conviction for sentence enhancement pursuant to § 32-5A-191(h), Ala. Code 1975.
Initially, we note that the current DUI statute is a recidivist statute in that the punishment, which is minimal for the first conviction, increases with each conviction and becomes a felony upon fourth or subsequent conviction. In reviewing the application of enhancement statutes, we have continuously held that the state must prove that the defendant had had counsel or that he had validly waived counsel. See, e.g., Terry v. State, 719 So.2d 263 (Ala.Cr.App. 1997)(holding that six prior uncounseled felony convictions could not be used in sentencing the defendant under the Habitual Felony Offender Act).
This Court rejected the state's argument in Farley v. City of Montgomery, 677 So.2d 1251 (Ala.Cr.App. 1995), stating:
"In regard to the appellant's claim that his prior convictions were not sufficient for enhancement purposes because he was not represented by counsel at the proceedings resulting in those convictions, this court has stated: `When a prior DUI conviction is used for enhancement purposes, the prosecution must establish that the accused was represented by counsel at the prior proceeding or that the right to counsel was waived.' Moon v. City of Montgomery, 536 So.2d 139, 141 (Ala.Cr.App. 1988)."
677 So.2d at 1253-54. Additionally, in Bilbrey v. State, 531 So.2d 27 (Ala.Cr.App. 1987), this Court, in a well-reasoned opinion written by Judge Patterson, held:
" hen a prior misdemeanor conviction is to be used for enhancement purposes under a recidivist statute, the State must establish that the defendant was represented by counsel or validly waived counsel at the prior proceeding, only if the prior misdemeanor was punishable by more than six months' imprisonment." 531 So.2d at 32.
Our decision in Bilbry v. State, supra, was predicated on the United States Supreme Court's opinion in Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), a per curiam opinion, which held that under the applicable Illinois sentencing enhancement statute, a prior, uncounseled misdemeanor conviction could not be used to elevate a second misdemeanor conviction to a felony. That case was overruled by Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994)In Nichols, supra, the United States Supreme Court overruled Baldasar, holding:
" n uncounseled misdemeanor conviction, valid under Scott[v. Illinois, 440
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