Opinion
No. CR-00-0301.
Decided April 27, 2001.
Appeal from Morgan Circuit Court (CC-99-1315).
John Mark Dutton was convicted in the Circuit Court of Morgan County of driving under the influence ("DUI"), a misdemeanor. At the time of the offense in question, Dutton had had four prior DUI convictions within the five-year period preceding the offense. Thus, under § 32-5A-191(h), he would have been sentenced for a Class C felony if he was convicted of the offense. However, by the time he was indicted and then convicted, because of the lapse of time between the offense and the indictment, the earlier DUI convictions were no longer within that immediately preceding five-year period, and this offense was his third conviction within a five-year period. Dutton pleaded guilty to misdemeanor DUI and was sentenced to one year in the Morgan County jail, and was ordered to pay a $200 fine and court costs. On appeal, Dutton argues that the Morgan Circuit Court did not have subject-matter jurisdiction to accept his guilty plea to misdemeanor DUI. The State acknowledges that the Morgan Circuit Court did not have subject-matter jurisdiction to accept Dutton's guilty plea for misdemeanor DUI. We agree.
Dutton was arrested for the present DUI on February 12, 1997. At the time of his arrest, under § 32-5A-191(h), Ala. Code 1975, a defendant convicted of a fourth DUI conviction within a five-year time period was guilty of a Class C felony. However, § 32-5A-191(h), Ala. Code 1975, has been interpreted to mean that the date of conviction, rather than the date of the offense or the arrest, controls for enhancement purposes. See State v. Brooks, 701 So.2d 56, 57 (Ala.Crim.App. 1996).
The Alabama Legislature removed the "within five years" provision of the DUI statute effective October 1, 1997. Act No. 97-556, Ala. Acts 1997. However, because Dutton was arrested in February 1997, his conviction must be reviewed under the statute in force at that time.
The grand jury returned a felony DUI indictment for this offense on May 26, 1999, and Dutton pleaded guilty on September 25, 2000. At the time of Dutton's indictment and at the time of his conviction, only two of his prior DUI convictions were within five years of this current DUI conviction. Therefore, the indictment charged only a misdemeanor DUI. InBlevins v. State, 747 So.2d 914 (Ala.Crim.App. 1998), this Court held that a circuit court has no jurisdiction when an indictment alleges only a misdemeanor; rather "the district court has exclusive original jurisdiction of misdemeanor prosecutions for traffic infractions even when an indictment has been returned (except ordinance infractions prosecuted in municipal court)." Id. at 916, citing Wright v. State, 494 So.2d 177, 179 (Ala.Crim.App. 1986).
In McDuffie v. State, 712 So.2d 1118 (Ala.Crim.App. 1998), this Court noted that, although Wright was decided before § 32-5A-191 provided a felony penalty for driving under the influence, Wright "remains in force as to defendants charged with the misdemeanor offense of driving under the influence." 712 So.2d at 119 n. 2.
The indictment against Dutton alleges a misdemeanor DUI because it shows the present DUI offense as his third conviction within a five-year period. Therefore, the municipal court of Decatur had exclusive original jurisdiction over the misdemeanor DUI rather than the Morgan Circuit Court. The State acknowledges that Morgan Circuit Court did not have original jurisdiction over the misdemeanor DUI. Accordingly, this case is reversed and the cause remanded to the Morgan Circuit Court for that court to remand the cause to the Decatur Municipal Court for proceedings consistent with this opinion.
REVERSED AND REMANDED.
McMillan, P.J., and Baschab, Shaw, and Wise, JJ., concur.