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The petitioner, Zephyriuns Egbuonu, appeals the denial of his petition for a writ of habeas corpus. In March 2003, the petitioner was arrested in California and charged with first-degree identity theft of the identity of an Alabama resident. §
Because this case concerns the matter of pretrial bail, on August 26, 2004, we issued an order informing the parties that we would expedite this case pursuant to Rule 9(a), Ala.R.App.P.,3 and treat it as an original petition for a writ of habeas corpus. See Colbert v. State,
Egbuonu argues that §
The circuit court held a hearing on Egbuonu's petition and then made the following entry on the case action summary sheet: "Motion for Petition for habeas corpus regarding alleged improper venue heard and denied."
Alabama's habeas corpus statute, §
"Any person who is imprisoned or restrained of his liberty in the State of Alabama on any criminal charge or accusation or under any other pretense whatever, except persons committed or detained by virtue of process issued by a court of the United States or by a judge thereof in cases of which such courts have exclusive jurisdiction under the laws of the United States or have acquired exclusive jurisdiction by the commencement of actions in such courts, may prosecute a writ of habeas corpus according to the provisions of this chapter to inquire into the cause of such imprisonment or restraint."
(Emphasis added.)
The Alabama Supreme Court has stated the following concerning a petition for a writ of habeas corpus:
Fourment v. State,"Where one is in custody which is predicated upon an assumed and exercised judicial jurisdiction of matter or person that it is asserted did not legally exist, habeas corpus is the remedy to institute an investigation of the existence of such jurisdiction; an inquiry very different from one involving the merely erroneous or irregular exercise of existent jurisdiction. Code 1896, § 4838; Ex parte Sam,
[(1824)], City of Selma v. Till, 51 Ala. 34 42 South. 405 [(Ala. 1906)]; Church on Habeas Corpus, §§ 356, 352. That this remedy, under the conditions defined, is appropriate, has, on several occasions, served to invite, without question, the decision of this court. We therefore take up for review the constitutionality of the act approved August 2, 1907. Acts 1907, pp. 518-519."
"In Barton v. City of Bessemer,
, 234 Ala. 20 , 173 So. 626 627 [(1937)], it was held that the constitutionality of an ordinance under which the petitioner had been convicted may be determined in a habeas corpus proceedings, for if the ordinance be unconstitutional, then, `the court would have no jurisdiction, and the arrest, trial, and conviction of the defendant under a void ordinance would be a nullity, and the petitioner would be entitled to his discharge on habeas corpus.'"
Art.
"That in all criminal prosecutions, the accused has a right to be heard by himself and counsel, or either; to demand the nature and cause of the accusation; and to have a copy thereof; to be confronted by the witnesses against him; to have compulsory process for obtaining *752 witnesses in his favor; to testify in all cases, in his own behalf, if he elects so to do; and, in all prosecutions by indictment, a speedy, public trial, by an impartial jury of the county or district in which the offense was committed. . . ."
(Emphasis added.) This provision was contained in Alabama's first constitution. See Art.
Section
"In any criminal proceeding brought pursuant to this article, the crime shall be considered to be committed in any county in which any part of the crime took place, regardless of whether the defendant was ever actually present in that county, or in the county of residence of the person who is the subject of the identification documents or identifying information."
(Emphasis added.)
In 1902, the Alabama Supreme Court first recognized that the Legislature must have some discretion to expound on the constitutional provision related to venue. See Taylor v. State,
"The constitutional provision entitling the accused in criminal prosecutions to a trial `by an impartial jury of the county or district in which the offense was committed' was contained in the constitution of 1868, and, as there existing was construed in Grogan v. State,
[(1870)], as not prohibiting the legislature to fix the venue for trial in either of two counties where an offense was within a quarter of a mile of their dividing line. In Jackson's Case, [ 44 Ala. 9 , 90 Ala. 590 (1891)], it was held that such construction should be presumed to have been acted on by the framers of the constitution of 1875 when they adopted the same clause in the latter instrument, and on that principle the statute now section 4972 of the Code was held valid. Thus a question which if original might have been doubtful, must be considered as settled." 8 So. 862
Our Legislature enacted special venue statutes in 1852. Section
When the Legislature enacted these venue statutes, Art. I, § 10, Constitution of 1819, provided, in part: "In all criminal prosecutions, the accused has a right to be *753 heard by himself . . .; . . . and, in all prosecutions, by indictment or information, a speedy public trial by an impartial jury of the county or district in which the offense shall have been committed. . . ." Clearly, the Legislature had knowledge of this constitutional provision at the time it enacted the special venue statutes.
Moreover, we believe that the Legislature had defined the crime of identity theft as a continuing offense. See §
Egbuonu also argues that §
No provision in Art.
"(a) A person commits the crime of identity theft if, without the authorization, consent, or permission of the victim, and with the intent to defraud for his or her own benefit or the benefit of a third person, he or she does any of the following:
"(1) Obtains, records, or accesses identifying information that would assist in accessing financial resources, obtaining identification documents, or obtaining benefits of the victim.
"(2) Obtains goods or services through the use of identifying information of the victim.
"(3) Obtains identification documents in the victim's name."
The Legislature in § 13-8-196 specifically designated that venue is proper either in the county where the crime took place or where the victim resides. Identity theft, by its definition, is a continuing offense that in most instances will occur in more than one county or even more than one state.
However, where there is no legislation on the matter of venue courts look to the purpose of the statute defining the offense. "Venue in a criminal case, though a constitutional matter, requires an inquiry into what conduct the statute proscribes."United States v. Muench,
"[A] review of relevant authorities demonstrates that there is no single defined policy or mechanical test to determine constitutional venue. Rather, the test is best described as a substantial contacts rule that takes into account a number of factors — the site of the defendant's acts, *754 the elements and nature of the crime, the locus of the effect of the criminal conduct, and the suitability of each district for accurate factfinding. . . .
". . . .
". . . [P]laces that suffer the effects of a crime are entitled to consideration for venue purposes. Such districts have an obvious contact with the litigation in their interest in preventing such effects from occurring. To some extent this factor overlaps with the definition and nature of the crime. . . ."United States v. Reed,
Section
Egbuonu further argues that Alabama cannot enact identity-theft legislation because the federal government has already passed laws on identity theft.
As the United States Supreme Court stated in United States v.Wheeler,
"States and the National Government are separate political communities. State and Federal Governments `[derive] power from different sources,' each from the organic law that established it. United States v. Lanza,, 260 U.S. 377 382 [,, 43 S.Ct. 141 ] [(1922)]. Each has the power, inherent in any sovereign, independently to determine what shall be an offense against its authority and to punish such offenses, and in doing so each `is exercising its own sovereignty, not that of the other.' Ibid. And while the States, as well as the Federal Government, are subject to the overriding requirements of the Federal Constitution, and the Supremacy Clause gives Congress within its sphere the power to enact laws superseding conflicting laws of the States, this degree of federal control over the exercise of state governmental power does not detract from the fact that it is a State's own sovereignty which is the origin of its power." 67 L.Ed. 314
(Footnote omitted.) This argument thus has no merit.
Egbuonu next argues that his extradition from California was illegal because, he argues, he was incorrectly labeled as a "fugitive." However, as Egbuonu admits in his petition, he waived extradition to return voluntarily to Alabama. As this Court stated in Davis v. State,
"[T]he appellant was returned to Alabama because of his voluntary waiver of extradition. In Siegel v. Edwards,, 566 F.2d 958 959-60 (5th Cir. 1978), the court stated:
"`Although the extradition papers of which appellant complains were never executed, appellant's return to Louisiana was not the result of those extradition papers. Appellant was returned to Louisiana because of his voluntary waiver of extradition. Once a fugitive has been brought within custody of the demanding state, legality of extradition is no longer proper subject of any legal attack by him.'"
Last, Egbuonu argues that his $100,000 bail is excessive. Identity theft *755
in the first degree is a Class C felony. The bail schedule found in Rule 7.2, Ala.R.Crim.P., recommends a bail of between $1,000 to $10,000 for a Class C felony. However, we have held that the factors set out in Rule 7.2(a)(1-14), Ala.R.Crim.P., may be used to increase the recommended bail. See Ex parte Thomas,
For the foregoing reasons, this petition for a writ of habeas corpus is due to be denied.
PETITION DENIED.
McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ., concur; SHAW, J., concurs in the result.
"A review authorized by law from an order refusing or imposing conditions of release shall be determined promptly. Upon entry of an order refusing or imposing conditions of release, the trial court shall state in writing the reasons for the action taken. The review shall be heard without the necessity of briefs upon such papers, affidavits and portions of the record as the parties shall present. The appellate court may order the release of the appellant pending the review."