Opinion
No. CR-97-0122.
June 19, 1998. Rehearing Denied August 14, 1998.
Appeal from Houston Circuit Court, No. CC-97-443, Larry K. Anderson.
AFFIRMED BY UNPUBLISHED MEMORANDUM
McMillan, Brown, and Baschab, JJ., concur; Cobb, J., concurs in part and dissents in part with opinion.
I dissent from the majority's holding in Part III of its unpublished memorandum. I joined Judge Long's dissent on rehearing in State v. Parker, 740 So.2d 421 (Ala.Cr.App. 1996), opinion on rehearing, 740 So.2d 424 (Ala.Cr.App. 1997). I agree with Judge Long's statement in his dissent in Parker that "the application of subsection 32-5A-191(f) [now subsection (h)] does not require a defendant's prior DUI convictions to be alleged in the charging instrument or proved to the jury and that, unless some exception is applicable in a particular case, evidence of the prior DUI convictions should not be presented to the jury." 740 So.2d at 429 (Long, P. J., dissenting).
Subsection (f) (now (h)) provides in pertinent part: "On a fourth or subsequent conviction, a person convicted of violating this section shall be guilty of a Class C felony. . . ."
The present case was assigned to Judge Long; he is compelled to follow the majority decision in Parker. Parker's petition for certiorari review has been granted by the Alabama Supreme Court and review is pending in that Court.
Although I am well aware that the majority has held otherwise, I nevertheless maintain that "subsection (f) [now (h)] is a sentence enhancement provision which requires that a defendant's prior DUI convictions be proven to the trial court at sentencing — only after there has been a determination of guilt in the underlying offense." 740 So.2d at 429. Until the Alabama Supreme Court rules on this matter, I feel compelled to respectfully dissent from part III of the unpublished memorandum.