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State v. Thrasher8/11/2000
is due to be reversed insofar as it held the State could not use the March 1981 conviction, and the cause is to be remanded for the Court of Criminal Appeals to order proceedings consistent with this opinion.
We conclude that the circuit court's order transferring the case back to the municipal court was properly reversed, based on this Court's holding in Ex parte Form-by [Ms. 1972151, August 27, 1999], __ So. 2d __ (Ala. 1999), because it appears that Thrasher has three prior DUI offenses that can be used to enhance his sentence under § 32-5A-191, Ala. Code 1975; because of the three prior DUI convictions, the circuit court had jurisdiction over Thrasher's case. We affirm that portion of the Court of Criminal Appeals' judgment reversing the circuit court's order transferring the case to the municipal court, although we do not necessarily agree with the reasoning of the Court of Criminal Appeals on this issue.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Hooper, C.J., and Houston , See, Lyons, Brown, Johnstone, and England, JJ., concur.
Cook, J., dissents.
COOK, Justice (dissenting).
I dissent from the conclusion in the main opinion that an uncounseled prior misdemeanor conviction in which a sentence of imprisonment was not imposed can be subsequently used for the purpose of enhancement. On this issue, I agree with the opinion of Judge Fry. State v. Thrasher, [Ms. CR-98-1112, Oct. 29, 1999] So. 2d (Ala. Crim. App. 1999). The Court of Criminal Appeals in Farley v. City of Montgomery, 677 So. 2d 1251 (Ala. Crim. App. 1995), and Bilbrey v. State, 531 So. 2d 27 (Ala. Crim. App. 1987), adopted the rule that when a prior conviction is used for the purpose of enhancement the state must prove either that the accused was represented by counsel at the prior proceeding or that counsel was waived; that rule is fundamentally sound. That rule provides a bright-line test that avoids the conflict in logic of a rule that forbids a sentence of imprisonment based on an uncounseled misdemeanor conviction but allows, through the sentence-enhancement mechanism, the imposition of a longer sentence of imprisonment based on that same uncounseled misdemeanor conviction.
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