Newberry v. State, 1 Div. 7
| Court | Alabama Court of Criminal Appeals |
| Writing for the Court | TYSON |
| Citation | 493 So.2d 993 |
| Parties | John A. NEWBERRY v. STATE. |
| Docket Number | 1 Div. 7 |
| Decision Date | 12 November 1985 |
Page 993
v.
STATE.
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).
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
Page 994
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...
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Fields v. State, 1 Div. 857
...to a procedural error committed by the State. Whirley v. State, 481 So.2d 1154 (Ala.1986). On November 12, 1985, in Newberry v. State, 493 So.2d 993 (Ala.Cr.App.1985), we again held the homicide by vehicle statute unconstitutional because it authorizes both misdemeanor and felony punishment......
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Ex parte Whirley
...addressed the question of the constitutionality of providing both misdemeanor and felony penalties in a statute. In Newberry v. State, 493 So.2d 993 (Ala.Cr.App.1985), the court held once again that such a provision was unconstitutional, relying on its earlier decision in Whirley This Court......
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Sams v. State, 6 Div. 782
...12, 1985, this court reversed and remanded the appellant's conviction of vehicular homicide on the authority of Newberry v. State, 493 So.2d 993 (Ala.Crim.App.1985), and Whirley v. State, 481 So.2d 1151 (Ala.Crim.App.1985), cert. quashed 481 So.2d 1154, (Ala.1986) which held that the statut......
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Newberry v. State
...was convicted of vehicular homicide and sentenced to five years' imprisonment. The Court of Criminal Appeals reversed the conviction, 493 So.2d 993 (1985), holding that the statute was unconstitutional because it authorized both misdemeanor and felony punishment for the same offense. The St......
-
Fields v. State, 1 Div. 857
...to a procedural error committed by the State. Whirley v. State, 481 So.2d 1154 (Ala.1986). On November 12, 1985, in Newberry v. State, 493 So.2d 993 (Ala.Cr.App.1985), we again held the homicide by vehicle statute unconstitutional because it authorizes both misdemeanor and felony punishment......
-
Ex parte Whirley
...addressed the question of the constitutionality of providing both misdemeanor and felony penalties in a statute. In Newberry v. State, 493 So.2d 993 (Ala.Cr.App.1985), the court held once again that such a provision was unconstitutional, relying on its earlier decision in Whirley This Court......
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Sams v. State, 6 Div. 782
...12, 1985, this court reversed and remanded the appellant's conviction of vehicular homicide on the authority of Newberry v. State, 493 So.2d 993 (Ala.Crim.App.1985), and Whirley v. State, 481 So.2d 1151 (Ala.Crim.App.1985), cert. quashed 481 So.2d 1154, (Ala.1986) which held that the statut......
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Newberry v. State
...was convicted of vehicular homicide and sentenced to five years' imprisonment. The Court of Criminal Appeals reversed the conviction, 493 So.2d 993 (1985), holding that the statute was unconstitutional because it authorized both misdemeanor and felony punishment for the same offense. The St......