Owens v. State8/31/2001
The appellant, James Wade Owens, was indicted on charges of driving while his license was revoked, a violation of § 32-6-19, Ala. Code 1975, and of exceeding the speed limit, a violation of § 32-5A-171, Ala. Code 1975. He was charged in a separate indictment for the felony offense of driving under the influence, a violation of § 32-5A-191(h), Ala. Code 1975. The cases were consolidated for trial, and after a trial, the appellant was found guilty of all of the charged offenses. The appellant, who had at least four prior DUI convictions, was sentenced to six years in prison and was fined $5,000. The trial court also ordered the appellant to pay a $20 fine for speeding and a $100 fine for driving while his license was revoked. This appeal followed.
The evidence presented at trial established that on August 29, 1999, Officer Rick Williams of the Priceville Police Department, while he was on patrol, saw the appellant's vehicle speeding, and crossing the center line, and the appellant was driving erratically. After following the vehicle for approximately a mile, Officer Williams stopped the appellant, who was then driving approximately 80 mph in a 55- mph zone. When Officer Williams requested that the appellant produce a driver's license, the appellant "stated that he did not have a license with him." (R. 35.) The appellant smelled of alcohol, his speech was slurred, and he was unstable on his feet. Officer Williams instructed the appellant to perform four field-sobriety tests; he failed all four. The appellant refused to take an Intoxilyzer 5000 test; he stated that "he was not going to blow into the instrument, that it didn't matter, he didn't have a driver's license anyway." (R. 59.)
I.
The appellant first argues that the indictment for felony DUI was insufficient to invoke the circuit court's jurisdiction. The indictment read as follows:
"James Wade Owens, whose name is to the Grand Jury otherwise unknown, did drive or was in actual physical control of a vehicle on, to-wit: August 29, 1999, while under the influence of alcohol and further, having been convicted three (3) or more times of driving under the influence , to-wit: James Wade Owens was convicted of driving under the influence of alcohol in the Municipal Court of Flint, Alabama (TR-91-1154), on September 17, 1991; James Wade Owens was convicted of driving under the influence of alcohol in the Municipal Court of Decatur, Alabama (TR-91-6822), on December 2, 1991; James Wade Owens was convicted of driving under the influence of alcohol in the Municipal Court of Hartselle, Alabama (TR-92-148), on March 19, 1992; and further, James Wade Owens was convicted of driving under the influence of alcohol in the Circuit Court of Morgan County, Alabama (CC-95-433), on September 8, 1995, in violation of Section 32-5A-191 of the Code of Alabama." (R. 71.)
The appellant contends that the indictment is fatally flawed because, he says, it should not have listed his prior DUI convictions, but instead, should simply have charged him with a felony for violating § 32-5A-191(h), Ala. Code 1975. See State v. Shaver, [Ms. CR-98-1332, October 29, 1999] ___ So. 2d ___ (Ala.Crim.App. 1999). Further, he argues that the indictment is defective because, he says, it fails to specifically allege a felony violation of § 32-5A-191(h), thereby failing to give subject-matter jurisdiction to the circuit court.
Review by this court is limited to matters properly raised before the trial court. Carter v. State, 627 So. 2d 1027, 1028 (Ala.Crim.App. 1992). The record indicates that at trial the appellant alleged that the trial court lacked subject-matter jurisdiction because the indictment failed to allege that the crime occ
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