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STATE v. PARKER9/27/1996
James Gregory Parker was indicted for felony driving under the influence, and because it was a fourth or subsequent conviction within a five-year period, the offense was enhanced to a Class C felony. See § 32-5A-191 (f), Code of Alabama 1975. Thereafter, Parker filed a motion in limine seeking to preclude the prosecutor from making reference during trial to Parker's prior convictions for driving under the influence. The trial court granted this motion. The State appeals, arguing that this order "will be fatal to the prosecution of this charge, if not reversed on appeal."
The record indicates that the indictment alleged that Parker committed the now charged driving under the influence offense, and that he had a minimum of three prior convictions for driving under the influence within the preceding five years, which raised the offense to a Class C felony. See § 32-5A-191(f), Code of Alabama 1975. The trial court denied Parker's motion to dismiss this indictment. In his motion in limine, the appellee argued (1) that the State should be precluded from making any reference to these prior DUI convictions because he said, such references if made, would constitute an improper attempt to introduce evidence of had character, and (2) that these prior convictions should be considered only for sentencing purposes.
The trial court's granting of the motion in limine, thereby prohibiting the State from referring to the prior driving under the influence convictions at any phase of trial, was clearly improper. Whether the prior DUI's were used as an element of the offense charged or strictly for purposes of sentencing enhancement, proof of these prior offenses must be introduced at some phase of trial. Furthermore, the prior convictions in this context elevates a misdemeanor offense to a felony offense. Such enhancement creates a question as to which court has jurisdiction over the matter. If, as in the present case the charged offense is a felony, the circuit court would have jurisdiction over both the trial and sentencing; however, if the prior convictions, which make the offense a felony, were not; included in the indictment or as an element of the offense, the district court would have exclusive original jurisdiction over the charge, because driving under the influence is a misdemeanor traffic offense. § 12-12-51, Code of Alabama 1975. However, the district court could not sentence Parker, unless he were to plead guilty, because at that point the charge becomes a felony offense. See
§§ 12-12-4 and 12-12-32 (b)(1), Code of Alabama 1975. Under this latter scenario, the matter would require a transfer to the circuit court for sentencing. In the interest of judicial efficiency, the prior convictions should be named in the indictment and considered an element of the offense.
Moreover, the Criminal Code in Alabama is full of similar provisions that make prior convictions an element of a charged offense. Ringer v. State, 501 So.2d 493, 494 (Ala.Cr.App. 1986) (Escape in the first degree may be committed by one who "having been convicted of a felony . . . escapes from custody imposed pursuant to that conviction." § 13A-10-31 (a)(2), Code of Alabama 1975); Graves v. State, 632 So.2d 30, 31 (Ala.Cr.App. 1992), rev'd in part, 632 So.2d 33 (Ala. 1993) (A prior conviction of a crime of violence is an element of unlawfully carrying a pistol in violation of § 13A-11-72 (a), Code of Alabama 1975). In Cain v. State, 562 So.2d 306, 308 (Ala. Cr.App. 1990), this Court held that a prior conviction of unlawful possession of marijuana in the second degree or unlawful possession of marijuana for personal use is an element of unlawful possession of marijuana in the first degree, a violation of § 13A-12-213 (a)
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