750 So. 2d 581 | Ala. Crim. App. | 1997
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The appellant, Stanley Formby, was convicted in 1996 of the felony offense of driving while under the influence of alcohol (D.U.I.), after having been convicted of three prior D.U.I. violations within the past five years, a violation of §§
Our examination of the record reveals that during a pretrial motion hearing defense counsel challenged the wording of the indictment returned against the appellant. Defense counsel objected to the indictment being read to the jury because it charged that the appellant had had three prior D.U.I. convictions within the past five years. However, defense counsel made no request during the motion hearing (R. 2-9) that any special limiting instructions be given to the jury, either during *584
the court's preliminary instructions to the jury or at such time when the prior D.U.I. convictions were admitted into evidence. Thus, nothing has been preserved for our review. See Pardue v. State,
Defense counsel also failed to request, at the close of the trial, that the trial court give any supplemental instructions regarding the jury's consideration of the appellant's three prior D.U.I. convictions.2 At the conclusion of the court's oral charge to the jury, defense counsel made the following objection:
"THE COURT: What says the State?
"MR. WILLIAMSON: Satisfied.
"THE COURT: What says the defendant?
"MR. QUICK: Judge, we have two areas. I didn't hear the Court charge on the lack of evidence and I would like for the Court to charge on that. The other was talking about the defendant's testimony. I would like the Court to go into the fact that just because he testifies and has something to gain or lose does not mean his testimony is not true.
"THE COURT: No, that is argumentative. I will further instruct on the first part."
(R. 184-85.) The trial court then gave further instructions to the jury on reasonable doubt, specifically charging the jury that "[a] reasonable doubt can arise either from consideration of the evidence that has been presented or a reasonable doubt can arise from a lack of evidence." (R. 185.) There were no further objections to the court's charge.
Rule 21.2, Ala.R.Crim.P., provides:
"No party may assign as error the court's giving or failing to give a written instruction or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge, unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury."
In the present case, the only objections to the court's charge concerned whether a reasonable doubt could arise from a lack of evidence and whether the jury should discount the defendant's testimony because his freedom was at stake. Defense counsel did not object, nor did he request any limiting instructions concerning the jury's consideration of the appellant's prior D.U.I. convictions. A specific ground of objection waives all other grounds not specified. McGee v. State,
In any event, the appellant's due process rights were not violated by the fact that the indictment, which was read to the jury, referred to three previous D.U.I. convictions, because "`[t]he obvious purpose of [using a prior conviction as an element of the charged offense is to] ensure that the accused is fully advised and informed of the nature and extent of the offense for which he stands charged. The aggravating circumstance is a statutory element of the crime which must be alleged and proven.'"Cain v. State,
When this case was tried, this Court had not yet addressed the constitutionality of the "felony D.U.I." statute. However, while the appellant's appeal was pending, this Court addressed, at some length, the constitutionality of the D.U.I. statute in State v.Parker, 740 So.2d at 426, and concluded that the statute passed constitutional muster. Thus, it is unnecessary to readdress this issue in the same detail we did in Parker.
First, the appellant argues that §
In the present case, §
Second, the appellant contends that §
Alabama courts have previously noted that the provisions of Article I, § 6, are rights secured during the trial of a defendant, not during the investigation of *586
issues collateral or preliminary to his prosecution. Tiner v. State,
Furthermore, it is not unusual for an accused to be arrested for a particular charge or offense and upon further investigation to be charged with additional or greater charges. Notice of a specific charge at the time of arrest does not prohibit the state from filing further charges. So long as the charging instrument sufficiently informs the accused of the nature of the charge against him, it is constitutionally valid. The appellant was not prosecuted pursuant to the issuance of the Uniform Traffic Ticket and Complaint ("UTTC"). Rather, the appellant was brought before the jurisdiction of the circuit court based upon a grand jury indictment charging him with the offense of "felony D.U.I." The indictment returned against the appellant provided him with sufficient notice that he was being tried for the felony offense of D.U.I.
Third, the appellant contends that §
"From the bill enacting §
32-5A-191 , an average person would be informed of the purpose of the statute. The title and the body of the bill that became §32-5A-191 when construed together, show a single purpose and relate to a single subject. The appellant's argument is without merit."
589 So.2d at 811. The purpose of the bill making D.U.I. a felony offense was to provide a more severe punishment for individuals with multiple D.U.I. convictions. Thus, the "felony D.U.I." bill did not address a subject other than operating a motor vehicle while under the influence of alcohol or a controlled substance.
Finally, the appellant contends that §
Our examination of the record reveals that both contentions are being raised for the first time on appeal. Thus, nothing is preserved for appellate review. See Worthington v. State,
Even so, we note:
Allen v. State,"For years, the risks and dangers of driving while intoxicated have been well publicized and it is virtually impossible for any reasonably intelligent person to be unaware of those risks and dangers. Those who persist in engaging in that type of conduct must accept the risk of being prosecuted for any number of offenses."
"On a fourth or subsequent conviction within a five-year period, a person convicted of violating this section shall be guilty of a Class C felony and punished by a fine of not less than four thousand dollars ($4,000) nor more than ten thousand dollars ($10,000) and by imprisonment of not less than one year and one day nor more than 10 years."
In the present case, the trial court sentenced the appellant to four years' imprisonment, but failed to impose the statutorily mandated fine. Thus, we must remand this case for a hearing to allow the state, the appellant, and his counsel the opportunity to address what would be an appropriate fine, and for the trial court to impose a fine within the range mandated by §
REMANDED WITH DIRECTIONS.*
All the Judges concur, except BASCHAB, J., who concurs in result only.