Newberry v. State, 1 Div. 7

• Citation: 493 So.2d 993
• Decision Date: 12 November 1985
• Docket Number: 1 Div. 7
• Parties: John A. NEWBERRY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 993

493 So.2d 993

John A. NEWBERRY v. STATE.

1 Div. 7.

Court of Criminal Appeals of Alabama.

Nov. 12, 1985.

Rehearing Denied Dec. 10, 1985.

Richard D. Horne and Richard M. Crump, of Hess, Atchison & Horne, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston III, Asst. Atty. Gen., for appellee.

TYSON, Judge.

John A. Newberry was indicted for homicide by vehicle pursuant to § 32-5A-192, Code of Alabama 1975. The indictment alleged that Newberry unlawfully and unintentionally caused the death of one Patricia Logan in an automobile accident, by driving under the influence of intoxicating liquor, or by driving on the wrong side of the road, or both.

Newberry filed a motion to dismiss the indictment alleging that the statute upon which the indictment was predicated, § 32-5A-192, was unconstitutional. (CR. 13-22). The trial court subsequently denied Newberry's motion to dismiss the indictment. (CR 23).

Newberry reserved his right to appeal the trial court's denial of his motion to dismiss and, while maintaining his plea of not guilty, stipulated that the State could prove a prima facie case against him. The trial court then adjudged Newberry guilty of homicide by vehicle. (R. 4-8). Following a sentencing hearing, the trial court fixed punishment at five years' imprisonment in the penitentiary. (R. 10-11).

I

Appellant contends that § 32-5A-192, Code of Alabama 1975, as most recently amended, is unconstitutional. He specifically argues that the statute violates Article I, Section 6 of the Alabama Constitution of 1901, in that such statute makes the offense of homicide by vehicle both a misdemeanor and a felony. Article I, Section 6, supra, guarantees that "in all criminal prosecutions, the accused has a right to ... demand the nature and cause of the accusation." McDavid v. State, 439 So.2d 750 (Ala.Crim.App.1983); Whirley v. State, 481 So.2d 1151 (Ala.Crim.App.1985), cert. denied, 481 So.2d 1154 (Ala.1985).

It has long been the law in Alabama that a statute making an offense both a felony and a misdemeanor is unconstitutional as being violative of Article I, Section 6. See Kyles v. State, 358 So.2d 797 (Ala.Crim.App.), cert. denied, 358 So.2d 799 (Ala.1978); McDavid, supra; Whirley, supra; Fields v. State, 472 So.2d 439 (Ala.Crim.App.1985).

"Section 13A-1-2(3), Code of Alabama 1975, defines a misdemeanor as '[a]n offense for which a sentence to a term of imprisonment not in excess of one year may be imposed,' while § 13A-1-2(4) declares that a felony is '[a]n offense for which a sentence to a term of imprisonment in excess of one year is authorizied....' "

Whirley, supra at 1152.

The homicide by vehicle statute, as most recently amended by the Alabama Legislature, provides the following:

"(a) Whoever shall unlawfully and unintentionaly cause the death of another person while engaged in the violation of any state law or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic shall be guilty of homicide when such violation is the proximate cause of said death.

"(b) Any person convicted of homicide by vehicle shall be fined not less than $500.00 nor more than $2,000.00, or shall be imprisoned for a term not less than one year nor more than five years, or may be so fined and so imprisoned."

Ala.Code § 32-5A-192 (1975) as amended, 1983. (Emphasis added).

The State argues that, since a sentence of greater than one year is authorized by the statute, i.e., 5 years, then a violation of the statute is a felony offense. However, a correct interpretation of § 13A-1-2(4) is that an offense is a felony if the sentence authorized by the statute is in excess of one year. See Cushing v. State, 455 So.2d 119, 121 (Ala.Crim.App.1984). See also, Ala. Code § 13A-5-4(a) and § 13A-5-6 (1975). Although the statute in question authorizes a term of imprisonment in excess of one year, the trial judge may impose a sentence of only one year, a term of imprisonment which is consistent with punishment for a misdemeanor and not a felony.

In Thompson v. State [No. 84-305, September 27, 1985] --- So.2d ---- (Ala.1985), the Alabama Supreme Court discussed the term "felony". Although the Thompson appeal was dealing with a robbery conviction under § 13A-8-41, and punishment under § 13A-5-9, we find part of the opinion pertinent to the cause at hand. In Thompson, the Supreme Court opined that, for an act to be a felony, it must be punishable by a sentence exceeding one year.

In Whirley, supra, this court held the 1980 version of the "homicide by vehicle statute" unconstitutional as allowing both misdemeanor and felony punishments. The statute condemned by Whirley allowed imprisonment in the county jail ranging from three months to one year or imprisonment in the penitentiary for one year to five years. This statute was amended into its present form by the Legislature of Alabama in 1983.

As noted above, the amended statute allows imprisonment of one year to five years. It further allows for punishment by the imposition of only a fine. The monetary limits of the fine ($500 to $2,000) could be consistent with either a felony offense or a misdemeanor offense. See Ala. Code §§ 13A-5-11, 13A-5-12 (1975). While a look at these sections reveals that for a Class C felony offense one may be fined not more than...