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ESKRIDGE v. STATE12/19/1997
der's conclusion, which may or may not be correct, and neither adds nor detracts from the allegation.' Harper v. United States, 27 F.2d 77, 79 (8th Cir. 1928); Allen v. State, 33 Ala. App. 70, 73, 30 So.2d 479 (1947). Reference to the statute is treated as surplusage. Fitzgerald v. State, 53 Ala. App. 663, 303 So.2d 162 (1974).
"Upon these authorities we conclude that a reference in an indictment to the statute defining the offense cannot be considered for the purpose of supplying an allegation of criminal intent which is an essential element of the offense and has been omitted from the indictment."
417 So.2d at 613-14. See also Project: Twenty-Sixth Annual Review of Criminal Procedure, 85 Geo.L.J. 775, 1036-40 (1997).
In our opinion on application for rehearing in State v. Parker, this Court held that proof of three prior D.U.I. convictions was a material element of the felony offense of driving while under the influence of alcohol as defined at § 32-5A-191(f), now subsection (h), and must be charged in the indictment: "This Court reaffirms its holding that § 32-5A-191(f), now subsection (h), Code of Alabama 1975, created a substantive felony offense and that the prior convictions for driving under the influence constituted elements thereof, and must be charged in the indictment." ___ So.2d at ___. (Emphasis supplied.)
Because the prior convictions are a material element of "felony D.U.I." under what is now § 32-5A-191(h), they must be set out in the charging instrument, and proven to the jury at trial. Accordingly, failure of the indictment to include this element rendered the indictment void, to the extent that it attempted to charge the appellant with "felony D.U.I." Instead, the language in the indictment charged the appellant with nothing more than the misdemeanor offense of driving while under the influence of alcohol. Moreover, because the indictment returned against the appellant charged him only with misdemeanor D.U.I. and with driving while his license was revoked — also a misdemeanor — the circuit court lacked jurisdiction to convict the appellant for D.U.I. and driving while his license was revoked. "The district court has exclusive original jurisdiction of misdemeanor prosecutions for traffic infractions even where an indictment has been returned (except ordinance infractions
prosecuted in municipal courts)." Wright v. State, 494 So.2d 177, 179 (Ala.Cr.App. 1986).
Here, just as in Wright, the appellant's convictions for D.U.I. and driving while his license was revoked must be reversed because the circuit court never had jurisdiction and a proper objection to this lack of jurisdiction was timely made.
The judgment of the circuit court is reversed and this cause is remanded to the circuit court with directions that the circuit court remand this cause to the district court for further proceedings.
REVERSED AND REMANDED WITH DIRECTIONS.
All the Judges concur.
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