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Pruitt v. State5/7/2004
Terry Lee Pruitt was sentenced as a felon for driving under the influence. The Court of Criminal Appeals reversed his conviction and remanded the case to the trial court with directions to adjudge him guilty of a misdemeanor offense and to resentence Pruitt accordingly. Pruitt v. State, [Ms. CR-02-1088, August 29, 2003] --- So.2d ---- (Ala.Crim.App.2003). The State filed a petition for a writ of certiorari, which this Court granted. We reverse and remand.
I. Facts and Procedural History
On March 12, 2002, Pruitt was indicted for two counts of driving under the influence ("DUI"). Count one of the indictment charged Pruitt with the offense of "unlawfully operat[ing] a motor vehicle on a public street or road in Sumter County, to-wit: County Road 13 while under the influence of alcohol and having been convicted of three prior offenses of driving under the influence, in violation of [§ ] 32-5A-191(a)(2) of the Code of Alabama." The second count of the indictment charged Pruitt with the offense of having "unlawfully operate [d] a motor vehicle on a public street or road in Sumter County, to-wit: County Road 13 while there was 0.08% or more of alcohol by weight in his blood, in violation of [§ ] 32-5A-191(a)(1) of the Code of Alabama."
During Pruitt's jury trial, the prosecutor stated that he was "electing to proceed under the .08 charge that [Pruitt] was charged with in the alternative." The jury convicted Pruitt of DUI as charged in count two of the indictment, and the trial court sentenced him as a felon to one year and a day based upon his three prior DUI convictions. The sentence was subject to suspension after Pruitt served 90 days in jail. Pruitt was also ordered to attend a class for DUI offenders and to bear the costs of the class and the court costs.
Pruitt appealed his conviction to the Court of Criminal Appeals. The Court of Criminal Appeals held that because count two of the indictment contained no reference to § 32-5A-191(h), Ala.Code 1975, which makes a fourth or subsequent conviction for DUI a felony and because Pruitt was not on notice that he was being charged with a felony, the trial court could not have convicted him of felony DUI. Thus, the Court of Criminal Appeals remanded the case for the trial court to vacate Pruitt's conviction for felony DUI and to adjudge him guilty of a misdemeanor DUI in accordance with count two of the indictment. This Court granted the State's petition for the writ of certiorari.
II. Analysis
A. Whether a Violation of § 32-5A-191(h) Must Be Specifically Alleged in the
Indictment
The Court of Criminal Appeals held that the trial court could not charge Pruitt with felony DUI because count two of the indictment, the count on which the State elected to proceed, did not refer to § 32-5A-191(h), Ala.Code 1975. The State argues that § 32-5A-191(h), Ala.Code 1975, serves as a sentence enhancement for certain DUI convictions, thereby allowing a misdemeanor DUI to be enhanced to a felony offense on the fourth or subsequent conviction for DUI. The State, citing Hale v. State, 848 So.2d 224, 233 (Ala.2002), argues that because the statute acts as a sentence enhancement rather than to define substantive elements of a separate offense, the failure to reference § 32-5A-191(h) in the indictment does not deprive the trial court of jurisdiction to impose the enhancement portion of the sentence.
*2 Section 32-5A-191(h), Ala.Code 1975, provides in pertinent part that "[o]n a fourth or subsequent conviction, a person convicted of violating this section shall be guilty of a Class C felony and punished by [a fine and a sentence within certain ranges]." As this Court previously held in Ex parte Parker, 740 So.2d 432, 434 (Ala.1999), "[s]ection 32-5A-191(h), plainly read, compels the conclusion tha
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