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Montgomery v. State3/30/2001
Gary Dean Montgomery was convicted of driving under the influence, in violation of § 32-5A-191, Ala. Code 1975, and possession of an open container, in violation of a municipal ordinance in the City of Decatur. Because this was a fourth or subsequent conviction for driving under the influence, he was adjudged guilty of a Class C felony. § 32-5A-191(h). He was sentenced to six years' imprisonment on the felony DUI and to 30 days in jail for possession of an open container. The sentences were to run concurrently. He was ordered to pay fines totaling $5,100, a victims' compensation assessment of $75, and court costs. On appeal, Montgomery contends: 1) that there was insufficient evidence to support his conviction, 2) that the trial court erred by denying the motions for a judgment of acquittal made at the close of the State's case and at the close of all of the evidence, and 3) that there exists no indictment in the record charging the open container offense, nor a showing of the adoption of the city ordinance, he was said to have violated. In an unpublished memorandum released today, we affirm the appellant's conviction for felony DUI. See Montgomery v. State, (CR-99- 2162, March 30, 2001) ___ So. 2d ___ (Ala. Crim. App. 2001)(table). In this opinion we address only the possession of an open container conviction.
Montgomery contends that his conviction for possession of an open container of an alcoholic beverage should be reversed because, he says, the State did not plead or prove the Decatur municipal ordinance, making possession of an open container of alcoholic beverages an offense. In order to prosecute a violation of a municipal ordinance, the State must plead and prove the ordinance. Sims v. State, [Ms. CR-99-1423, September 29, 2000] ___ So. 2d ___ (Ala. Crim. App. 2000). If the ordinance is not introduced into evidence, a case has not been made and any pronouncement of a judgment by a trial court that the ordinance has been violated is error. Id.
The State did not introduce the Decatur municipal ordinance into evidence at trial. The State acknowledges in its brief that the failure to ensure that the ordinance was admitted into evidence rendered its evidence insufficient to support a conviction for possession of an open container. The State agrees that the conviction should be reversed. Accordingly, we must reverse the conviction and render a judgment for Montgomery as to the conviction for possession of an open container.
AFFIRMED BY MEMORANDUM AS TO CONVICTION FOR DUI; REVERSED AND JUDGMENT RENDERED AS TO CONVICTION FOR POSSESSION OF AN OPEN CONTAINER.
McMillan, P.J., and Baschab, Shaw, and Wise, JJ., concur.
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