May v. Lingo

• Decision Date: 10 September 1964
• Docket Number: 3 Div. 125
• Citation: 167 So.2d 267,277 Ala. 92
• Parties: Franklin MAY v. Albert J. LINGO, Director of Public Safety, etc.
• Court: Alabama Supreme Court

Page 267

167 So.2d 267

277 Ala. 92

Franklin MAY v. Albert J. LINGO, Director of Public Safety, etc.

3 Div. 125.

Supreme Court of Alabama.

Sept. 10, 1964.

Jas. M. Fullan, Jr., Birmingham, for appellant.

Richmond M. Flowers, Atty. Gen., and Robt. P. Bradley, Asst. Atty. Gen., for appellee.

LAWSON, Justice.

In an appeal from the Recorder's Court of the City of Birmingham by Franklin May, the following entry was made in the minutes of the Circuit Court of Jefferson County:

'This the 5th day of March, 1963, came Wm. C. Walker, Attorney, who prosecutes for the City of Birmingham, and also came the defendant in his own person and by attorney, and the defendant being duly arraigned upon the oral Complaint of the City of Birmingham, charging the defendant with the offense designated in the Appeal Bond from the Recorder's Court of the City of Birmingham, Alabama, in this cause, for his plea thereto enters a plea of Nolo Contendere to driving a car while intoxicated, as charged in said oral Complaint, and on recommendation of City Attorney Walker, the Court assessed a find of One Hundred Dollars ($100.00) and costs against said defendant. It is therefore considered by the Court, and it is the judgment of the Court that said defendant is guilty of driving car while intoxicated, as charged in said oral complaint, and that he pay a fine of One Hundred Dollars ($100.00) and costs of this cause.

'And the defendant paid said fine and costs to the Clerk and was discharged.'

On or about October 24, 1963, the Director of the Department of Public Safety, Albert J. Lingo, gave written notice to Franklin May that his driver's license had been revoked because he had been convicted in Jefferson County on March 5, 1963, of 'driving while intoxicated.'

On October 31, 1963, Franklin May filed in the Circuit Court of Montgomery County a petition for mandamus to compel Albert J. Lingo, as Director of Public Safety of Alabama, to rescind his order revoking May's driver's license.

Upon the presentation of the petition for mandamus to one of the judges of the Circuit Court of Montgomery County, the clerk of that court was ordered to issue an alternative writ of mandamus directed to Mr. Lingo. That writ was duly issued.

The respondent, Mr. Lingo, thereafter interposed demurrer to the petition and filed his 'answer and return.'

On December 17, 1963, the trial judge sustained the demurrer to the petition and since the petitioner declined to amend his petition, a judgment in favor of Mr. Lingo was made and entered.

From that judgment the petitioner below, Franklin May, has appealed to this court.

Section 68, Title 36, Code 1940, as amended, provides in part as follows:

'* * * Whenever any person is convicted of any offense for which this article makes mandatory the revocation of the driver's license of such person by the direction of public safety, the court in which such conviction is had shall require the surrender to it of the driver's license then held by the person so convicted and the court shall thereupon cause the same to be forwarded together with a record of such conviction to the director of public safety. * * * The director of public safety shall forthwith revoke the license of any driver upon receiving a record of such driver's conviction of any of the following offenses, when such conviction has become final: * * * driving a motor vehicle by a person * * * while intoxicated; * * *.'

When a person is convicted of driving a motor vehicle while intoxicated and such conviction becomes final, it is the mandatory duty of the Director of Public Safety to forthwith revoke his driver's license. Ex parte Smith, 30 Ala.App. 24, 200 So. 114; State ex rel. Bates v. Savage, 34 Ala.App. 633, 42 So.2d 695. No discretion on the part of the Director of Public Safety is involved. His action is purely administrative so far as mandatory revocations are concerned. Anything said to the contrary in Ex parte State ex rel. Sullivan, 262 Ala. 188, 78 So.2d 322, and in Ex part State ex rel. Lyerly, 38 Ala.App. 630, 91 So.2d 233, is disapproved.

May does not question the finality of the judgment of March 5, 1963. It is his contention, if we understand it correctly, that the judgment of March 5, 1963, being based on a plea of nolo contendere rather than on a plea of guilty or a plea of not guilty, affords no basis for the revocation of his driver's license. In support of such contention May relies on our case of State ex rel. Woods v. Thrower, 272 Ala. 344, 131 So.2d 420. Thrower, while holding the office of Commissioner of the City of Dothan, was adjudged guilty in a federal district court of a felony under the laws of the United States (evading payment of United States income taxes) and was fined $1500. That conviction was rested on a plea of nolo contendere. Following his conviction in the federal court, a proceeding in the nature of quo warranto was brought against Thrower in a court of this state to determine his right to hold the office of Commissioner of the City of Dothan. It was the contention of Woods, the relator that under certain sections of our Constitution and statutes Thrower was disqualified to hold the office of Commissioner because of the aforesaid conviction. §§ 60 and 182, Constitution of 1901; § 5, Title 41, and § 15, Title 17, Code 1940. The trial court held, in effect, that the constitutional and statutory provisions just cited above did not operate to render Thrower ineligible to hold the stated office since his conviction in the federal court, being based on a plea of nolo contendere, was limited to that particular case and had no effect outside of that case.

In affirming the trial court's action, we cited our cases of Fidelity-Phenix Fire Ins. Co. of N. Y. v. Murphy, 231 Ala. 680, 166 So. 604, and Wright v. State, 38 Ala.App. 64, 79 So.2d 66, cert. denied, 262 Ala. 420, 79 So.2d 74. In the Murphy case, supra, it was held that a conviction for perjury in a federal court entered on a plea of nolo contendere did not render a witness incompetent to testify in a civil case in the courts of this state. In the Wright case, supra, it was held that evidence of the conviction of a witness in a federal court based on a plea of nolo contendere was not admissible in a criminal case in an Alabama court for the purpose of discrediting the witness.

In the Thrower case, supra, we said as follows:

'The doctrine in this jurisdiction is that the plea of nolo contendere, so called, is not in a strict legal sense a plea in the criminal law at all, but is a formal declaration by the accused that he will not contest with the prosecuting authorities under the charge. It is in the nature of a compromise between the State and the defendant and if accepted by the trial judge (which in his discretion he may or may not do) a judgment of conviction may be entered thereon. It is not a plea of guilty but is in the nature of a tacit confession and is limited to the particular case and only that case. It has no effect outside of that case.

* * *

* * *

'* * * The life line of the rule is that the record of such a conviction is limited to the case and only the case in which the plea is entered; it is, in fact, not a conviction at all on a plea of guilty, but is an adjudication on a declaration by the accused in open court that, for reasons personal to himself (and there could be many bona fide, honest ones) he prefers not only to stand mute with respect to answering the charge, but also will not contest the prosecution's efforts with respect to it.' (272 Ala. 346-347, 131 So.2d 422-423.)

If the plea of nolo contendere can be correctly interposed under our system of jurisprudence, we would be confronted with the question as to whether our holding in the Thrower case and in the cases from this jurisdiction cited in the Thrower case operate to prevent the Director of Public Safety from revoking the driver's license of one who has been convicted of driving while intoxicated following the imposition of such a plea. In North Carolina, where the interposition of such a plea is permitted, that question has been answered in the negative. Fox v. Sheidt, 241 N.C. 31, 84 S.E.2d 259.

But insofar as our research discloses, the appellate courts of this state have never recognized the plea of nolo contendere as a part of our criminal procedure. In his response to the rehearing application filed in the Murphy case, supra, Mr. Justice Thomas observed: 'We have indicated the nature and limited power of a plea of nolo contendere, which may be interposed in a federal court by the consent of its presiding judge. No such plea is recognized; nor could one be entered or sentence had thereon, under our system of jurisprudence.' (231 Ala. 688, 166 So. 604, 611) That statement does not seem to have been approved or disapproved by the other members of the court who participated in the action overruling the rehearing. In the response on rehearing in the Murphy case authored by Mr. Justice Bouldin, in which the other participating Justices concurred, appears this statement: 'The record shows the judgment entered on a plea of nolo contendere. This is a special and limited plea recognized in some jurisdictions.' (Emphasis supplied) (231 Ala. 691, 166 So. 613.) This is certainly not a holding that such a plea is a part of our criminal procedure.

We recognize the fact that the plea of nolo contendere has been said to have originated in the early English common law (Fox v. Sheidt, supra; 152 A.L.R. 254) and that § 3, Title 1, Code 1940, provides:

'The common law of England, so far as it is not inconsistent with the Constitution, laws and institutions of this state, shall, together with such institutions and laws, be the rule of decisions, and shall continue in force, except as from time to time it may be altered or repealed by the legislature.'

We are aware of no statutory provision which expressly prohibits the interposition of a plea of nolo contendere. But our...