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JOHNSTON v. STATE11/1/1996
opriate relief.
II.
The appellant contends that the trial court erred in denying his motion for a judgment of acquittal, because, he says, the State failed to provide evidence of his prior D.U.I. convictions. He notes that § 32-5A-191(f), Code of Alabama 1975, provides that a person is guilty of a Class "C" felony if that conviction is the fourth or subsequent conviction within a 5-year period. He argues that, because the court "did not allow any evidence of prior convictions to be heard," an essential element of the offense was not proven.
The record reveals that before trial, the trial judge stated, " nless the Defendant wishes for me to do so, I'm not going to allow the State to introduce evidence of prior convictions. I'm gonna treat those as an enhancement as opposed to an element of the offense." The record further reveals that the appellant did not object to the procedure the court outlined. However, the requirement to prove the essential elements of an offense cannot be waived.
In State v. Parker, [Ms. CR-95-1435, September 27, 1996], 740 So.2d 421 (Ala.Cr.App. 1996), this Court stated that, because prior D.U.I. convictions cause the misdemeanor offense to become a felony offense and create a distinction as to which court may have jurisdiction, a defendant's prior D.U.I. convictions should be named in the indictment and considered an element of the offense. See Cain v. State, 562 So.2d 306 (Ala.Cr.App. 1990) (reference in indictment to prior marijuana conviction does not violate due process because the prior conviction was an element of the charged offense of felony marijuana possession).
In the present case, the appellant was charged in the indictment with felony D.U.I., but his prior D.U.I. convictions were not introduced at trial or treated as an element of that offense. Therefore, he was improperly adjudged guilty of the felony offense. The judgment is, therefore, due to be reversed and the cause remanded to the trial court for reinstatement of the jury's verdict of guilty of misdemeanor driving under the influence and resentencing in conformity therewith.
REVERSED AND REMANDED.
All judges concur except LONG, J., who dissents without opinion.
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