Whirley v. State
| Decision Date | 10 January 1986 |
| Citation | 481 So.2d 1154 |
| Parties | Ex parte State of Alabama (Re: Kenneth WHIRLEY v. STATE of Alabama). 84-496. |
| Court | Alabama Supreme Court |
Certiorari to the Court of Criminal Appeals (3 Div. 25).
Charles A. Graddick, Atty. Gen., and M. Beth Slate, Asst. Atty. Gen., for petitioner.
J. Robert Faulk, Prattville, for respondent.
Because the State of Alabama has conceded that vehicular homicide as provided for in § 32-5A-192, Code 1975, is not a lesser included offense as to murder pursuant to § 13A-6-2, Code 1975, the writ is quashed. See Ex parte Jordan [MS. 84-621, January 10, 1986], --- So.2d ---- (Ala.1986).
WRIT QUASHED AS IMPROVIDENTLY GRANTED.
I concur in the judgment quashing the writ and allowing the Court of Criminal Appeals' judgment of reversal to stand, 481 So.2d 1151, because it is the function of the parties and not of the Court to formulate the issues. The State has conceded the invalidity of the only issue raised in its petition for the writ; thus, nothing is presented for our review.
This does not mean, however, that this Court is bound by the State's concession that vehicular homicide is not a lesser included offense as to murder. Indeed, this Court has this date held that in appropriate factual contexts vehicular homicide (Code 1975, § 32-5A-192) is a lesser included offense as to murder (§ 13A-6-2). Ex parte Jordan, [MS. 84-621, January 10, 1986] --- So.2d ---- (Ala.1986).
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... ... homicide by vehicle, it must be proved that a death occurred as the proximate result of the defendant's being '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 ... ' Ala.Code 1975, § 32-5A-192." Whirley v. State, 481 So.2d 1151, 1154 (Ala.Cr.App.1985), writ quashed, 481 So.2d 1154 (Ala.1986). State law prohibits a person from driving a vehicle while "[u]nder the influence of alcohol," § 32-5A-191(a)(2), and also requires, with certain exceptions, none of which are applicable here, that vehicles ... ...
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Fields v. State, 1 Div. 857
... ... After submission of the instant case on appeal, this court in another case held the homicide by vehicle statute unconstitutional on the ground that, by its punishment provisions, it made the offense both a misdemeanor and a felony. Whirley v. State, 481 So.2d 1151 (Ala.Cr.App.1985), cert. quashed, 481 So.2d 1154 (Ala.1986). After release of the opinion in Whirley, appellant herein filed a supplemental letter brief with this court claiming that our decision in Whirley was dispositive of the instant case. The record in the instant ... ...
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