Ex parte Dison

• Decision Date: 16 November 1984
• Citation: 469 So.2d 662
• Parties: Ex parte Elmore N. DISON III. (Re: Elmore N. DISON III v. STATE.) 83-836.
• Court: Alabama Supreme Court

Page 662

469 So.2d 662

Ex parte Elmore N. DISON III (Re: Elmore N. DISON III v. STATE.)

83-836.

Supreme Court of Alabama.

Nov. 16, 1984.

Rehearing Denied Feb. 8, 1985.

Arthur Parker, Birmingham, for petitioner.

Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for respondent.

BEATTY, Justice.

This Court granted certiorari in order to respond to the following legal question: Whether an appeal from a conviction of a misdemeanor in district court upon an unsworn DUI ticket and complaint gives the circuit court jurisdiction in a trial de novo and allows the circuit court to verify the complaint, or whether a subsequent judgment of conviction in circuit court is void.

Appellant Dison was arrested by a state trooper on December 24, 1982, and given a ticket for driving under the influence of alcohol. The arresting officer signed the ticket and complaint, but it was not sworn to and acknowledged by a judge or magistrate prior to or during the district court proceedings. Dison was tried in the district court of Jefferson County on February 22, 1983, and found guilty and fined $200. He appealed to the circuit court, where the district attorney filed a separate complaint.

Dison moved to dismiss the complaint on the ground that the district court judgment was void as based on a complaint without the affidavit. The circuit court judge denied the motion, and then the judge signed the verification portion of the original ticket after having the arresting officer take the stand and swear to the charge. Dison was found guilty and again fined $200.

On March 20, 1984, the Court of Criminal Appeals affirmed Dison's conviction, and, on April 24, 1984, overruled his application for rehearing. 469 So.2d 661. That court also overruled his Rule 39(k), A.R.A.P., motion directed to what he contends was the misconstruction of the facts by the Court of Criminal Appeals in that the language in that court's opinion seemed to imply that the state trooper failed to sign the ticket, when, in fact, the ticket was signed, but not verified by the district court. The record supports the allegations of petitioner's motion.

A perusal of the authorities leads to the conclusion that the Court of Criminal Appeals erred in affirming petitioner's conviction under these facts.

The manner of a court's obtaining jurisdiction was discussed in Kyser v. State, 22 Ala.App. 431, 432, 117 So. 157, 158 (1928):

"Jurisdiction of the offense and of the person must concur to authorize a court of competent jurisdiction to proceed to final judgment in a criminal prosecution. This to the end, a formal accusation sufficient to apprise the defendant of the nature and cause of the accusation is a prerequisite to jurisdiction of the offense. Irregularities in obtaining jurisdiction of the person may be waived, but a formal accusation by indictment, or authorized information, or complaint supported by oath, is essential to complete jurisdiction, and cannot be waived." (Emphasis added.)

In Slater v. State, 230 Ala. 320, 162 So. 130 (1935), a misdemeanor complaint lacking specificity in the affidavit as to the violation charged was attacked. The accused appealed a county court conviction to circuit court, where the accused was again convicted. This Court held on appeal that the affidavit and warrant were void for failing to allege an offense, and added:

"We are impelled to hold that a blanket charge of violation of the prohibition law of Alabama as it now exists does not designate any distinct or specific offense by name or as known in common parlance. It is equally applicable to any one of numerous distinct offenses, some misdemeanors, some felonies, each depending on its own state of facts. A charge of violating the law of the road, or the public health laws, would be equally specific. We must, therefore, hold the affidavit void.

"This want of an affidavit, the initial step in the prosecution, goes to the jurisdiction of the court. The court must take notice ex mero motu....

"A complaint filed by the solicitor in the circuit court on appeal from a conviction in the county court in such case will not suffice to give the circuit court jurisdiction...." (Emphasis added.) (Citations omitted.) 230 Ala. at 322, 162 So. at 132.

Leonard v. State, 52 Ala.App. 212, 290 So.2d 673 (1974), is to the same effect. In Leonard, the accused was charged under an unverified complaint filed in the county court. After his conviction in the county court, he appealed to the circuit court, where he was again convicted. The Court of Criminal Appeals reversed his conviction, stating at 52 Ala.App. at 213, 290 So.2d at 674:

"We held in Hawkins v. State, 20 Ala.App. 285, 101 So. 514 [1924], as follows:

" '* * * The only manner provided by law for the commencement of a prosecution in this state is by the finding of an indictment or by the swearing out a warrant based upon probable cause of the officer issuing same. The statute provides a party aggrieved, or desiring to bring a charge of misdemeanor before the county court, may apply to the judge thereof, or to some justice of the peace of the county, for a warrant of arrest, and, upon making affidavit in writing that he has probable cause for believing, and does believe, that an offense (designating the misdemeanor by name, or by some other phrase which in common parlance designates it) has been committed in said county by the accused on the person or property, as the case may be, of A.B. (naming the person injured), then the judge of said court or the justice of the peace shall examine the affiant under oath and other witnesses, if he so desires, touching the offense charged in the affidavit, and, if the court or justice of the peace has probable cause for believing that the offense alleged in the affidavit has been committed, he shall issue his warrant of arrest. Code 1907, § 6703. (Now Title 13, § 327, Recompiled Code 1958)'

"We also held in Wetzel v. State, 27 Ala.App. 517, 176 So. 224(3) [1937], cert. den. 234 Ala. 610, 176 So. 226, as follows:

" 'That part of the Solicitor's complaint filed in the circuit court charging the carrying of a pistol on premises not his own, not being sustained by an affidavit as provided by section 3815 of the Code of 1923 (Now Title 13, § 327, Recompiled Code 1958), is void, and would not support a conviction. Hawkins v. State, 20 Ala.App. 285, 101 So. 514.' "

And, in Sparks v. State, 39 Ala.App. 517, 104 So.2d 764 (1958), the Court of Appeals held that a form which purported to be an affidavit, but which lacked the name of an affiant and a subscription, was no affidavit at all, and there being no affidavit, the charge against the accused was unsupported. "Being still-born," that court remarked, "amendment cannot breathe life into it." See also Dennis v. State, 40 Ala.App. 480, 115 So.2d 125 (1959).

The respondent cites us to Pierce v. State, 38 Ala.App. 97, 77 So.2d 507 (1954). It is true that the language of Pierce made the affidavit no substantial part of the solicitor's complaint, therefore holding that its absence did not render the complaint void or deprive the court of jurisdiction. Moreover, the respondent argues that the petitioner here waived the defect complained of by failing to object thereto in district court, citing Pierce, supra, and Nicholas v. State, 32 Ala.App. 574, 28 So.2d 422 (1946). Nicholas, however, was based upon two bastardy prosecutions in which written complaints were not required, the duty of the inferior court having been limited to finding probable cause and certifying the case to circuit court. Cf. Laney v. State, 109 Ala. 34, 19 So. 531 (1896). Nicholas, in addition, relied on Title 13, § 346, Code of 1940, which regarded as amended on appeal any amendable imperfections or inaccuracies in inferior proceedings. This section was repealed by Acts of Ala. 1975, No. 1205, § 4-134.

Cf. also Temporary Rule 16.2(d)., A.R.Crim.P.:

"The lack of subject matter jurisdiction or the failure of the charge to state an offense may be raised by the court or by motion of the defendant at any time during the pendency of the proceeding...." (See Comment which explains that subject matter jurisdiction, such as a sworn complaint, cannot be waived; however, personal jurisdiction may be waived.)

Respondent also argues that petitioner's appeal to the circuit court was via a trial de novo: It cites Yarbrough v. City of Birmingham, 353 So.2d 75, 78 (Ala.Crim.App.1977), for the proposition that:

"A trial de novo means that the slate is wiped clean and a trial in the Circuit Court is had without any consideration being given to prior proceedings in another court."

Yarbrough itself, however, recognized that the inferior court's judgment was "a step toward the jurisdiction of the Circuit Court." Although the slate is wiped clean, in a sense, our decisions have not allowed a subsequent district attorney's complaint to be sufficient to confer jurisdiction upon the circuit court without resting upon a charge supported by affidavit. Horn v. State, 22 Ala.App. 459, 117 So. 283 (1928). Indeed,

"[m]ere inaccuracies or imperfections in the proceedings before the county court cannot be taken advantage of on appeal to the circuit court, where the trial is de novo, but this rule cannot be extended so as to authorize the arrest of a person, and subject him to a prosecution in the circuit court upon a mere statement of the solicitor, unsupported by an affidavit which charges an offense, and which affidavit is insufficient to authorize the issue of a warrant of arrest...." Miles v. State, 94 Ala. 106, 107, 11 So. 403 (1892).

And, when the initial affidavit in a misdemeanor case is not merely irregular, but void, it will not support the filing of a sufficient information or complaint by the district attorney for a trial de novo in circuit court. Sellers v. State, 55 Ala.App. 114, 313 So.2d 542 (1975); Slater, supra.

We observe that our judicial decisions on the question...