Burnett v. State9/17/1999
The appellant, Mickey Wayne Burnett, was convicted of three counts of vehicular homicide, violations of §32-5A-192, Ala. Code 1975. The trial court sentenced him to five years in prison on each count, but split the sentences and ordered him to serve consecutive terms of one year in prison followed by four years on probation on each count. It further ordered that, as a condition of his probation, he could not drive at any time for any reason. The appellant filed a motion for a new trial, which was denied by operation of law. This appeal followed.
I.
The appellant first argues that §32-5A-192, Ala. Code 1975, is unconstitutional because it "impos felony sanctions in the absence of a culpable mental state." (Appellant's brief at p. 5.) Section 32-5A-192 contains two terms that could be read to define the state of mental culpability for vehicular homicide -- "unlawfully" and "unintentionally." Because we find that the term "unlawfully" defines the culpable mental state required under that statute, the appellant's argument is not well-taken.
Section 13A-2-2, Ala. Code 1975, specifically defines four states of mental culpability: "intentionally," "knowingly," "recklessly," and "criminal negligence." Although the Alabama Criminal Code does not define "unlawfully" as that term is used in §32-5A-192, "it seems apparent that those who helped to draft the Alabama Criminal Code were aware of the problems caused when statutes set out a culpable mental state and express it in different words." Ex parte Harper, 594 So.2d 1181, 1189 (Ala. 1991), cert. denied, 506 U.S. 918, 113 S.Ct. 330, 121 L.Ed.2d 248 (1992). The commentary to §13A-2-2 points out that the drafters of the Criminal Code recognized states of mental culpability other than those defined in that section:
"It would be impossible to review, much less reconcile and make clear and uniform, the myriad of Alabama statutes and cases that have employed or discussed some term of mental culpability. Such mental terms and concepts, while necessarily difficult to articulate, sometimes have been vaguely or only partly defined, or otherwise seem imprecise or inconclusive, unclear or ambiguous, even confusing or contradictory, or overrefined with technical, obscure and often subtle, if not dubious, distinctions. These adverbial terms include, e.g.: 'intentionally,' 'willfully,' 'purposely,' 'designedly,' 'knowingly,' 'deliberately,' 'maliciously,' 'with premeditation,' 'recklessly,' 'negligently,' 'with culpable negligence,' 'with gross negligence,' 'with criminal negligence,' 'without due caution,' 'wickedly,' 'unlawfully,' 'wrongfully' and scores of others."
(Emphasis added.)
Based upon this commentary, we conclude that, although "unlawfully" is not one of the terms specifically defined in §13A-2-2, the legislature intended for that term to be recognized as a state of mental culpability when used in a statute defining a criminal offense.
Because the Criminal Code does not define "unlawfully," we must determine where that term falls on the continuum of mental culpability in relation to those terms that are specifically defined in §13A-2-2. First, we note that "unlawfully" does not convey the same meaning as "intentionally" because the term "unintentionally" is used in §32-5A-192. Second, the Alabama Supreme Court has already determined that "unlawfully" cannot be equated with the culpable mental state of "knowingly" defined in §13A-2-2. Ex parte Harper, 594 So.2d at 1190-91. Finally, in Ex parte Long, 600 So.2d 982 (Ala. 1992), the Alabama Supreme Court "reinterpret the relative degrees of culpability of vehicular homicide and criminally negligent homicide," stating that vehicular homicid
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