Tulley v. City of Jacksonville (Ex parte Tulley)
Decision Date | 04 September 2015 |
Docket Number | 1140049. |
Citation | 199 So.3d 812 |
Parties | Ex parte Jason Dean TULLEY. (In re Jason Dean Tulley v. City of Jacksonville). |
Court | Alabama Supreme Court |
J.D. Lloyd, Birmingham; and Joseph J. Basgier of Bloomston & Basgier, Birmingham, for petitioner.
Marilyn May Hudson, Jacksonville, for respondent.
Michael P. Hanle, Birmingham, for amicus curiae BamaCarry, in support of the petitioner.
Jason Dean Tulley was convicted in the Calhoun Circuit Court of carrying a pistol on premises not his own in violation of Ordinance No. O–514–10 of the City of Jacksonville (“the City”), which adopts § 13A–11–52, Ala.Code 1975. In a plurality opinion, the Court of Criminal Appeals affirmed Tulley's conviction. Tulley v. City of Jacksonville, 199 So.3d 779 (Ala.Crim.App.2014). We granted certiorari review to determine whether by charging him under Ordinance No. O–514–10, which incorporates by general reference § 13A–11–52, the City violated Tulley's due-process rights.
Ordinance No. O–514–10 provides, in part:
Ordinance No. O–514–10 is a general-reference ordinance, which adopts by reference existing state misdemeanors, offenses, and violations and makes them municipal misdemeanors, offenses, and violations when those acts occur within the City's corporate limits or its police jurisdiction. See Evans v. Sunshine–Jr. Stores, Inc., 587 So.2d 312 (Ala.1991), superseded by regulation, Krupp Oil, Inc. v. Yeargan, 665 So.2d 920 (Ala.1995) ( ); Casteel v. City of Decatur, 215 Ala. 4, 4, 109 So. 571, 572 (1926) ( ).
In Ex parte Davis, 200 Ala. 436, 76 So. 368 (1917), the Court addressed a municipal ordinance that adopted state misdemeanors as offenses against the municipality. The Court stated:
200 Ala. at 437, 76 So. at 369.
In the present case, subsection (c) of Ordinance No. O–514–10 provides that “offenses” not declared to be misdemeanors, felonies, or violations of state law are offenses against the City. The City adopted the definition of “offense” in § 13A–1–2(10), Ala.Code 1975, which states that an offense is “[c]onduct for which a sentence to a term of imprisonment, or the death penalty, or to a fine is provided by any law of this state or by any law, local law, or ordinance of a political subdivision of this state.” Section 13A–11–52, which describes the offense with which Tulley was charged, does not designate the offense described therein as a misdemeanor, felony, or violation of state law. At the time of Tulley's conviction, it provided:2
“Except as otherwise provided in this article, no person shall carry a pistol about his person on premises not his own or under his control; but this section shall not apply to any sheriff or his deputy or police officer of an incorporated town or city in the lawful discharge of the duties of his office, or to United States marshal or his deputies, rural free delivery mail carriers in the discharge of their duties as such, bonded constables in the discharge of their duties as such, conductors, railway mail clerks and express messengers in the discharge of their duties.”
The Court of Criminal Appeals set out the following facts regarding Tulley's conviction:
In appealing his conviction, Tulley argued before the Court of Criminal Appeals, among other things, that § 13A–11–52 was unconstitutionally vague because it did not contain a punishment provision for violating the statute, nor did § 13A–11–52 designate whether a violation of the statute was a felony or a misdemeanor so that another Code provision might provide a sentence to save the statute. Tulley further argued that by charging him under § 13A–11–52 the City had violated his rights to due process.
In addressing this argument, a plurality of the Court of Criminal Appeals acknowledged the history of § 13A–11–52 and its predecessor statutes, beginning with a precursor act adopted in 1919, which had included a sentence. The main opinion of the Court of Criminal Appeals noted that the substance of the 1919 act, including the sentencing provision, was carried forward in the 1923 recodification of the Alabama Code. The main opinion noted that the 1940 recodification read as follows:
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