MCDUFFIE v. STATE11/14/1997
Pursuant to a negotiated plea agreement, the appellant, Sidney Earl McDuffie II, was convicted of the felony offense of driving under the influence of alcohol (D.U.I.), a violation of §§ 32-5A-191(a) and 32-5A-191(h), Code of Alabama 1975. He was sentenced to 10 years' imprisonment, and was ordered to serve 18 months; the remainder of the term was suspended. This sentence was to run concurrently with the sentence the appellant received for another conviction in Etowah County, to be followed by a term of probation. The appellant was also fined $4,000, plus court costs.
Before entering his plea, the appellant reserved three issues for appellate review.
I.
The appellant contends that § 32-5A-191(h), Code of Alabama 1975, requires the state to prove a prior "fourth conviction" as an element of the felony offense of D.U.I. for which he was prosecuted. At the time of the appellant's trial, § 32-5A-191(h), provided, in pertinent part, as follows:
"On a fourth or subsequent conviction within a five-year period, a person convicted of violating this section shall be guilty of a Class C felony and punished by a fine of not less than four thousand dollars ($4,000) nor more than ten thousand dollars ($10,000) and by imprisonment of not less than one year and one day nor more than 10 years."
Specifically, the appellant argues that under the definition of "conviction" as set out in Carroll v. State, 599 So.2d 1253, 1267 (Ala. Cr. App. 1992), aff'd, 627 So.2d 874 (Ala. 1993), cert. denied, 510 U.S. 1171, 114 S.Ct. 1207, 127 L.Ed.2d 554 (1994), "there must have been a prior 'judgment' and 'sentence' and 'determination of guilt' as those terms are defined by Rule 26.1(a)(1), (2), and (3), A.R.Crim.P." Therefore, he argues, a fourth D.U.I. conviction cannot exist until after the jury has returned its verdict and the trial judge has adjudged the appellant guilty. Thus, he says, § 32-5A-191(h) states an offense that is impossible to prove.
The appellant misinterprets the language in § 32-5A-191(h). The appellant admitted, as part of the plea colloquy, that he had been convicted of driving under the influence of alcohol three times within the five years preceding this offense. Therefore, "on" (or "upon") this conviction, which was the fourth D.U.I. conviction for the appellant, the trial court correctly adjudged him guilty of a Class C felony. As this Court explained in State v. Parker, [Ms. CR-95-1435, September 26, 1997] ___ So.2d ___ (Ala. Cr. App. 1996) (on rehearing), it is the proof of at least three prior D.U.I. convictions that is an element of the felony offense set out in § 32-5A-191(h), not the fourth or subsequent conviction.
II.
The appellant also contends that the circuit court lacked jurisdiction over his case because, he says, driving under the influence of alcohol is defined as a "traffic offense" in Title 32. The appellant argues that Rule 2.2(b), Ala.R.Crim.P., which provides, in relevant part, that traffic infractions shall be prosecuted in district court, gives exclusive jurisdiction over all traffic offenses to the district court, because the rule does not distinguish between misdemeanor traffic offenses and felony traffic offenses. He cites as authority for his position Wright v. State, 494 So.2d 177 (Ala. Cr. App. 1986).
The appellant's reliance on Wright is misplaced. That decision was rendered at a time when § 32-5A-191, Code of Alabama 1975 did not include a felony penalty for driving under the influence. The Court, in Wright, based its decision on § 32-5A-3, Code of Alabama 1975, which provided that "unless otherwise declared in this chapter with respect to particular offenses, it is a misde
Page 1 2 3 Alabama DUI Attorneys
DUI Lawyers
|