Ex parte Hoover
- Reporters:
- ,
- Before:
- Nabers, See, Lyons, Harwood, Woodall, Smith, Bolin, Parker, Stuart (per curiam)
WRIT QUASHED. NO OPINION.
NABERS, C.J., and SEE, LYONS, HARWOOD, WOODALL, SMITH, BOLIN, and PARKER, JJ., concur.
STUART, J., dissents.
STUART, Justice (dissenting).
Craig Allen Hoover was convicted after a nonjury trial in the Lee Circuit Court of felony driving under the influence of alcohol, a violation of
Hoover argues to this Court that the decision of the Court of Criminal Appeals that convictions based on violations of municipal ordinances prohibiting driving under the influence of alcohol were properly counted toward the total number of convictions necessary to constitute the felony offense conflicted with this Court‘s decision in Ex parte Bertram, 884 So.2d 889 (Ala.2003). In Ex parte Bertram, this Court construed
“[T]he word conviction means conviction of violating this section everywhere the word conviction appears within the section, including where the word conviction appears in Subsection (h) defining the felony. Such a construction would require Subsection (h) be read to mean `On a fourth or subsequent conviction [of violating this section], a person convicted of violating this section shall be guilty of a Class C felony and punished by [stating the penalty].‘”
The Court of Criminal Appeals, recognizing that this Court in Ex parte Bertram did not address the issue of the applicability of municipal convictions to
“This Court held in McDuffie v. State, 712 So.2d 1118 (Ala.Crim.App.1997), that prior municipal convictions for driving under the influence could support a felony conviction for driving under the influence:
“`The appellant further contends that the state should not have been allowed to introduce into evidence two of his prior D.U.I. convictions because, he says, they were convictions for violating a municipal ordinance, rather than convictions for violating
§ 32-5A-191, Code of Alabama 1975 . He argues (1) that the language of§ 32-5A-191(h) “refers to three prior violations of that provision as being a pre-requisite to being guilty of felony-D.U.I.” (appellant‘s brief, p. 8); and (2) that the provisions of a municipal ordinance might not be the same as those in the state statute and thus, the use of any municipal convictions asany of the three prior convictions required by § 32-5A-191(h) would deprive him of proper notice of the charge he was being called upon to defend. We find no merit in these assertions.“`Our examination of
§ 32-5A-191(h) reveals no language requiring that the prior convictions required for that section to be applicable be obtained under§ 32-5A-191 , as the appellant contends. The appellant admitted that he had had three prior D.U.I. convictions.’”Id. at 1120. This Court finds that the holding in Ex parte Bertram is distinguishable from this Court‘s holding in McDuffie, as Ex parte Bertram holds only that out-of-state convictions for driving under the influence do not count as prior convictions under Alabama law.
“Furthermore, in Hoover‘s case, as was the case in McDuffie, he admitted to having three prior driving-under-the-influence convictions in Alabama. Accordingly, this Court finds that the evidence was sufficient to support a conviction for felony driving under the influence under
§ 32-5A-191(h), Ala. Code 1975 .”
I agree with the Court of Criminal Appeals that the holding in Ex parte Bertram should not be read to preclude a violation of a municipal ordinance for driving under the influence of alcohol from counting toward the felony of driving under the influence defined in
Here, the decision of the Court of Criminal Appeals properly limited the application of this Court‘s holding in Ex parte Bertram. Because I maintain the this Court needs to revisit its holding in Ex parte Bertram and redefine the word “conviction” to include any conviction for driving under the influence of alcohol that satisfies