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STATE v. RAMSEY12/19/1997
Robert Allen Ramsey was indicted on two alternative counts of felony driving under the influence of alcohol. See § 32-5A-191(h), Code of Alabama 1975. He moved to dismiss the indictment on the grounds that it failed to charge an indictable offense. After a hearing, the trial court granted the motion and dismissed the indictment, finding that there was insufficient evidence that Ramsey had waived counsel with regard to an underlying conviction on December 16, 1992, in the Cullman Municipal Court for driving under the influence of alcohol.
The Uniform Traffic Ticket and Complaint ("UTTC") charging the 1992 offense reflects, in pertinent part, the following:
1. The space next to the words "Attorney for Defendant" is blank.
2. The blocks next to the words "Defendant informed of right to counsel," "Voluntarily waived counsel" are checked.
3. The block next to the words "Defendant found indigent, counsel appointed" is blank.
4. The UTTC is signed by the magistrate judge.
The parties and the trial court agree that, pursuant to this Court's decision in Robinson v. State, 649 So.2d 1331 (Ala. Cr. App. 1994), a UTTC that is completed by a municipal court judge and that indicates, "Defendant informed of right to counsel, voluntarily waived counsel," is sufficient evidence of the voluntary waiver of counsel. In the present case, however, despite the fact that the UTTC form so indicated, the trial court found that the evidence of waiver was insufficient.
The record of the present case contains, in addition to the UTTC, a two-page explanation of rights form. The trial court noted that option C on that form which indicates as waiver of counsel, "was neither marked nor circled by the Defendant or Municipal Court Judge." The court further noted that " he UTC-1 purports to show that the Defendant waived his right to counsel, whereas the more detailed Explanation of Rights fails to disclose what the Defendant did in the Cullman Municipal Court with respect to his right to counsel." The court then concluded that " he existence of the unmarked and conflicting Explanation of Rights" form distinguished the present case from Robinson, supra, and held that this conflicting evidence was insufficient as a matter of law to show that the appellee voluntarily, knowingly, and intelligently waived his right to counsel.
The explanation of rights form reads, in pertinent part, as follows:
"The undersigned understands that he/she has the right to retain an attorney to represent him/her in this matter. Further, the undersigned understands that the
Court will appoint an attorney to represent him/her in this matter, if he/she is financially unable to employ an attorney.
"The undersigned hereby:
"A. informs the Court that he/she has employed the Hon. __________ to represent him/her in this matter.
"B. requests the Court to appoint an attorney to represent him/her in this matter and agrees to submit to the Court an affidavit on his/her financial condition.
"C. informs the Court that he/she understands that he/she has a right to an attorney to represent him/her in this matter and waives the right to be represented by an attorney.
"Your attorney will go over these rights with you, but if you have any questions about any of them, please ask the undersigned judge and he will be happy to make further explanation thereof to you.
"Comes the defendant in the above-styled case and states to the court that he/she has read, or has had read to him/her, the matters and things hereinabove set forth: that his/her attorney has thoroughly gone over s
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