Opinion
6 Div. 782.
November 12, 1985. Rehearing Denied December 10, 1985.
Appeal from the Circuit Court, Jefferson County, James V. Hard IV, J.
Roger C. Appell, Birmingham, for appellant.
Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appellee.
Loree Sams was indicted for the offense of homicide by vehicle in violation of § 32-5A-192, Code of Alabama 1975. The jury found the appellant "guilty as charged" and, following a sentencing hearing, the trial court sentenced her to three years in the penitentiary, suspended sentence, and placed her on three years' probation.
During the pendency of this case on appeal, this court declared § 32-5A-192 unconstitutional in the case of Newberry v. State, 493 So.2d 993 (Ala.Crim.App. 1985).
Therefore, the decision of this court in Newberry is dispositive of the case sub judice. The homicide by vehicle statute in effect at the time of the collision at issue in this case, and under which the appellant was indicted and convicted, provided both felony and misdemeanor punishments for the named offense, and is, therefore, unconstitutional. Newberry, supra.
Because the statute under which appellant was convicted was unconstitutional for the reasons stated above, the appellant's conviction must be reversed and this cause remanded. Accordingly, we find no need to decide other issues by the appellant, Sams.
REVERSED AND REMANDED.
All the Judges concur.