State v. Whirley
| Court | Alabama Court of Criminal Appeals |
| Citation | 530 So.2d 861 |
| Docket Number | 3 Div. 596 |
| Parties | The STATE of Alabama v. Kenneth WHIRLEY. |
| Decision Date | 10 March 1987 |
Page 861
v.
Kenneth WHIRLEY.
Rehearing Denied April 14, 1987.
Page 862
Charles A. Graddick and Don Siegelman, Attys. Gen., Beth Slate Poe, Asst. Atty. Gen., for appellant.
Stephen W. Drinkard of Drinkard & Drinkard, Prattville, for appellee.
BOWEN, Presiding Judge.
This is a pretrial appeal by the State from the order of the Circuit Court of Autauga County dismissing an indictment against Kenneth Whirley for murder and vehicular homicide and discharging Whirley from custody.
In 1984, Whirley was indicted for reckless murder under Alabama Code 1975, § 13A-6-2. He was convicted of vehicular homicide under § 32-5A-192 as a lesser included offense.
On appeal, this Court reversed Whirley's conviction finding (1) that the vehicular homicide statute was unconstitutional because it provided both misdemeanor and felony punishment for the same offense, and (2) that the jury was erroneously charged that vehicular homicide was a lesser included offense of murder. Whirley v. State, 481 So.2d 1151 (Ala.Cr.App.1985). The Alabama Supreme Court quashed the petition for writ of certiorari "[b]ecause the State of Alabama ... conceded that vehicular homicide ... is not a lesser included offense as to murder." 481 So.2d 1154 (Ala.1986). Both our Supreme Court and the Attorney General have characterized this concession as a "procedural error." Newberry v. State, 493 So.2d 995, 996, n. 1 (Ala.1986); Appellant's brief, p. 2.
In Ex parte Jordan, 486 So.2d 485 (Ala.1986), decided January 10, 1986--the same date as Whirley--the State made no concession, and our Supreme Court held that vehicular homicide may constitute a lesser included offense of murder depending upon the facts of each case. The court noted that, in both Jordan v. State, 486 So.2d 482 (Ala.Cr.App.1985), and Whirley v. State, 481 So.2d 1151 (Ala.Cr.App.1985), the Court of Criminal Appeals erred in holding that "a set of facts establishing the commission of murder can never also establish the commission of vehicular homicide." Jordan, 486 So.2d at 488 (emphasis in original).
In April of 1986, four months after its decisions in Whirley and Jordan, the Alabama Supreme Court upheld the constitutionality of the vehicular homicide statute over the objection that it provided for punishment in both the felony and the misdemeanor range. Newberry, supra.
In August of 1986, after Whirley's conviction had been reversed and remanded to the circuit court, Whirley was reindicted in a two-count indictment charging both reckless murder (§ 13A-6-2) and vehicular homicide (§ 32-5A-192). Whirley moved to dismiss this second indictment alleging that it placed him in jeopardy since he had already been convicted of vehicular homicide and that it was barred by the three-year statute of limitations. The District Attorney filed a motion to deny Whirley's motion to dismiss or, in the alternative, a request to restore the 1984 indictment to the trial docket. Both requests were denied. The circuit court ordered that Whirley's "Motion be in all respects granted," set the
Page 863
1986 indictment aside, and discharged Whirley from custody.The State gave notice of appeal under Rule 17, A.R.Cr.P.Temp., and the circuit court ordered that the 1984 indictment (CC-83-224) and the 1986 indictment (CC-86-184) "be consolidated for purposes of a pretrial appeal by the State."
On this appeal, both the State and Whirley argue that the law of the case controls. The State contends in effect that, since this Court agreed with Whirley's argument on original appeal that the trial court erroneously charged the jury that vehicular homicide constituted a lesser included offense, Whirley can now be retried for murder since the verdict of guilty of vehicular homicide was unauthorized. Whirley makes three contentions: (1) He cannot be prosecuted for murder since under the principles of former jeopardy a jury acquitted him of murder in finding him guilty of vehicular homicide. (2) He cannot be prosecuted for vehicular homicide because this Court declared that statute unconstitutional and that decision has not been reversed. (3) He cannot be indicted under the amended vehicular homicide statute which has been declared constitutional because the new indictment is barred by the statute of limitations.
We reject those arguments of both the State and Whirley which are based upon the law of the case.
Here, the term " 'law of the case' ... designates the principle that if an appellate court has passed on a legal question and remanded the cause to the court below for further proceedings, the legal questions thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case." 5 Am.Jur.2d Appeal and Error § 744 (1962). However, this is a rule of policy and not of law.
"Doctrine of 'law of the case' is one of policy only and will be disregarded when compelling circumstances...
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