Bertram v. State12/21/2001
The appellant, Patricia Norman Bertram, pled guilty to felony driving under the influence ("felony DUI"), a violation of §32-5A-191(a)(2) and (h), Ala. Code 1975, and misdemeanor leaving the scene of an accident, a violation of §32-10-1, Ala. Code 1975. The circuit court sentenced her to serve a term of five years in prison on the felony DUI conviction, but split the sentence and ordered her to serve two years in prison followed by five years on supervised probation. It also sentenced her to serve a concurrent term of one year in the county jail on the leaving the scene of an accident conviction. Finally, it imposed a $4,100 fine on the felony DUI conviction. This appeal follows.
The appellant argues that, because she was originally charged with misdemeanor DUI, the municipal court improperly transferred her cases for prosecution in the circuit court. She also argues that the circuit court improperly used a prior DUI conviction from the State of Florida to enhance her sentence on her DUI conviction. The appellant bases her arguments on a contention that only prior convictions pursuant to §32-5A-191, Ala. Code 1975, may be used to enhance a sentence for a conviction pursuant to §32-5A-191, Ala. Code 1975. We disagree.
"'Where, as here, this Court is called upon to construe a statute, the fundamental rule is that the court has a duty to ascertain and effectuate legislative intent expressed in the statute, which may be gleaned from the language used, the reason and necessity for the act, and the purpose sought to be obtained.' Ex parte Holladay, 466 So. 2d 956, 960 (Ala. 1985). ' he fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute.... In construing the statute, this Court should gather the intent of the legislature from the language of the statute itself, if possible.... We may also look to the reason and necessity for the statute and the purpose sought to be obtained by enacting the statute.' Pace v. Armstrong World Industries, Inc., 578 So. 2d 281, 283 (Ala. 1991). 'If possible, the intent of the legislature should be gathered from the language of the statute itself. However, if the statute is ambiguous or uncertain, the Court may consider conditions that might arise under the provisions of the statute and examine the results that will flow from giving the language in question one particular meaning rather than another.' Volkswagen of America, Inc. v. Dillard, 579 So. 2d 1301, 1305 (Ala. 1991)." Carroll v. State, 599 So. 2d 1253, 1264 (Ala. Crim. 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).
Section 32-5A-191, Ala. Code 1975, provides, in pertinent part:
"(a) A person shall not drive or be in actual physical control of any vehicle while:
"...
"(2) Under the influence of alcohol;
"....
"(h) On 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 of not less than four thousand one hundred dollars ($4,100) nor more than ten thousand one hundred dollars ($10,100) and by imprisonment of not less than one year and one day nor more than 10 years."
Section 32-5A-191, Ala. Code 1975, does not specifically state that only convictions pursuant to that section may be used to enhance a sentence for a conviction pursuant to that section. However, the Commentary to §32-5A-191, Ala. Code 1975, states, in part:
"The purpose of this section is not only to bring the law on driving while intoxicated in line with the most recent advances made in other states to
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