State v. Parker

• Citation: 740 So.2d 421
• Parties: STATE v. James Gregory PARKER.
• Decision Date: 27 September 1996
• Court: Alabama Court of Criminal Appeals

740 So.2d 421

STATE v. James Gregory PARKER.

CR-95-1435.

Court of Criminal Appeals of Alabama.

September 27, 1996.

Opinion on Rehearing September 26, 1997.

Douglas Valeska, district atty., Dothan; and Jeff Sessions and Bill Pryor, attys. gen., and Rosa Davis and John J. Park, Jr., asst. attys. gen., for appellant.

Tom Motley, Dothan, for appellee.

Thomas W. Sorrells, Montgomery, for amicus curiae Alabama District Attorneys Ass'n.

Everette A. Price, Jr., Brewton, for amicus curiae Alabama Criminal Defense Lawyers Ass'n.

McMILLAN, Judge.

James Gregory Parker was indicted for felony driving under the influence, and because it was a fourth or subsequent conviction within a five-year period, the offense was enhanced to a Class C felony. See § 32-5A-191(f), Code of Alabama 1975. Thereafter, Parker filed a motion in limine seeking to preclude the prosecutor from making reference during trial to Parker's prior convictions for driving under the influence. The trial court granted this motion. The State appeals, arguing that this order "will be fatal to the prosecution of this charge, if not reversed on appeal."

The record indicates that the indictment alleged that Parker committed the now charged driving under the influence offense, and that he had a minimum of three prior convictions for driving under the influence within the preceding five years, which raised the offense to a Class C felony. See § 32-5A-191(f), Code of Alabama 1975. The trial court denied Parker's motion to dismiss this indictment. In his motion in limine, the appellee argued (1) that the State should be precluded from making any reference to these prior DUI convictions because he said, such references if made, would constitute an improper attempt to introduce evidence of bad character, and (2) that these prior convictions should be considered only for sentencing purposes.

The trial court's granting of the motion in limine, thereby prohibiting the State from referring to the prior driving under the influence convictions at any phase of trial, was clearly improper. Whether the prior DUI's were used as an element of the offense charged or strictly for purposes of sentencing enhancement, proof of these prior offenses must be introduced at some phase of trial. Furthermore, the prior convictions in this context elevate a misdemeanor offense to a felony offense. Such enhancement creates a question as to which court has jurisdiction over the matter. If, as in the present case the charged offense is a felony, the circuit court would have jurisdiction over both the trial and sentencing; however, if the prior convictions, which make the offense a felony, were not included in the indictment or as an element of the offense, the district court would have exclusive original jurisdiction over the charge, because driving under the influence is a misdemeanor traffic offense. § 12-12-51, Code of Alabama 1975. However, the district court could not sentence Parker, unless he were to plead guilty, because at that point the charge becomes a felony offense. See §§ 12-12-4 and 12-12-32(b)(1), Code of Alabama 1975. Under this latter scenario, the matter would require a transfer to the circuit court for sentencing. In the interest of judicial efficiency, the prior convictions should be named in the indictment and considered an element of the offense.

Moreover, the Criminal Code in Alabama is full of similar provisions that make prior convictions an element of a charged offense. Ringer v. State, 501 So.2d 493, 494 (Ala.Cr.App.1986) (Escape in the first degree may be committed by one who "having been convicted of a felony ... escapes from custody imposed pursuant to that conviction." § 13A-10-31(a)(2), Code of Alabama 1975); Graves v. State, 632 So.2d 30, 31 (Ala.Cr.App.1992), rev'd in part, 632 So.2d 33 (Ala.1993) (A prior conviction of a crime of violence is an element of unlawfully carrying a pistol in violation of § 13A-11-72(a), Code of Alabama 1975). In Cain v. State, 562 So.2d 306, 308 (Ala. Cr.App.1990), this Court held that a prior conviction of unlawful possession of marijuana in the second degree or unlawful possession of marijuana for personal use is an element of unlawful possession of marijuana in the first degree, a violation of § 13A-12-213(a)(2), Code of Alabama 1975. In so holding, this court stated that the appellant's due process rights were not violated by the fact that the indictment, which was read to the jury, contained a reference to a previous conviction because "[t]he obvious purpose of [using a prior conviction as an element of the charged offense is to] ensure that the accused is fully advised and informed of the nature and extent of the offense for which he stands charged. The aggravating circumstance is a statutory element of the crime which must be alleged and proven." Cain at 308. Additionally, this court stated in Cain that, because the jury was given limiting instructions to disregard evidence of the prior offense when considering the guilt or innocence of the appellant, no due process violation occurred.

Section 32-5A-191(f), Code of Alabama 1975, provides:

"On a fourth or subsequent conviction within a five-year period, a person convicted of violating this section shall be guilty of a Class C felony and punished by a fine of not less than four thousand dollars ($4,000) nor more than ten thousand dollars ($10,000) and by imprisonment of not less than one year and one day nor more than 10 years. Any term of imprisonment may include hard labor for the county or state, and where imprisonment does not exceed three years confinement may be in the county jail. The minimum sentence shall include a term of imprisonment for at least one year and one day which may be suspended or probated, but only if the defendant enrolls and successfully completes a state certified chemical dependency program recommended by the court referral officer and approved by the sentencing court. Where probation is granted, the sentencing court may, in its discretion, and where monitoring equipment is available, place the defendant on house arrest under electronic surveillance during the probationary term. In addition to the other penalties authorized, the Director of Public Safety shall revoke the driving privilege or driver's license of the person so convicted for a period of five years.

"Any law to the contrary notwithstanding, the Alabama habitual felony offender law shall not apply to a conviction of a felony pursuant to this subsection, and a conviction for purposes of the enhancement of punishment pursuant to Alabama's habitual felony offender law."

The appellant's prior DUI convictions were necessarily included in the indictment because they made the charged offense a felony, which was properly tried in the circuit court. See § 12-11-30(2) and § 12-12-32(b)(1), Code of Alabama 1975.

Thus, in the present case, the trial court properly denied the appellant's motion to dismiss the indictment, which charged the prior convictions as elements of the present offense, but erred in granting the appellant's motion in limine. Therefore, the judgment is due to be reversed and the cause remanded to the trial court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

All judges concur, except LONG, J., who dissents, without opinion.

ON APPLICATION FOR REHEARING

McMILLAN, Judge.

On application for rehearing, the State, as the appellant, and the Alabama District Attorneys Association, as amicus curiae, filed motions pursuant to Rule 2(b), Ala. R.App.P., to suspend the rules and allow additional argument. This motion was granted and oral argument was allowed. Attorneys representing those two parties, defense counsel, and an attorney for the Alabama Criminal Defense Lawyers Association, as amicus curiae, participated in oral argument. During oral argument, James Gregory Parker, the appellee, argued that § 32-5A-191(f), Code of Alabama 1975, violated his right to due process of law, and that it was void for vagueness. (Since the appellee's indictment, § 32-5A-191 has been amended twice. What was subsection (f) at that time is currently substantially found in subsection (h).) In raising these issues, Parker acknowledges "that matters not presented on appeal cannot be considered on application for rehearing," Ex parte Howell, 431 So.2d 1328, 1329 (Ala.1983), but further notes that, pursuant to Rule 2(b), Ala.R.App.P., "for other good cause shown, an appellate court may suspend the requirements or provisions of any of these rules in a particular case." Therefore, we will address the issue of the constitutionality of the statute.

This Court reaffirms its holding that § 32-5A-191(f), now subsection (h), Code of Alabama 1975, created a substantive felony offense and that the prior convictions for driving under the influence constituted elements thereof, and must be charged in the indictment. The Florida Supreme Court has similarly held that, under Florida's statutory scheme, prior DUI convictions are elements of felony DUI.

"It is well settled that the existence of three or more prior DUI convictions is an essential element of felony DUI and therefore must be asserted in the document charging felony DUI. State v. Rodriguez, 575 So.2d 1262, 1265 (Fla.1991). In so finding, the Rodriguez court explained that the charging document must allege the essential facts against which the defendant must defend, in other words, `the essential facts constituting the offense charged.' Id. at 1264; see also Fla.R.Crim.P. 3.140(b). The court reasoned that, unlike the habitual offender statute, the felony DUI statute creates a substantive offense. Like the felony petit larceny statute, the existence of three or more prior DUI convictions elevates the degree or level of the crime. Analogizing to the felony petit larceny statute, the court concluded that `the existence of three or more prior DUI convictions is an essential fact constituting the substantive offense of

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