Opinion
No. CR-98-1112.
September 17, 1999.
Appeal from Morgan Circuit Court (CC-98-1094).
AFFIRMED BY UNPUBLISHED MEMORANDUM.
McMillan and Cobb, JJ., concur; Long, P.J., dissents with opinion; Baschab, J., joins dissent.
I respectfully dissent from the majority's holding in the unpublished memorandum opinion in this case, which states that the circuit court correctly transferred Thrasher's case to the municipal court because the circuit court had found that Thrasher's prior uncounseled misdemeanor DUI convictions could not be used to enhance Thrasher's sentence upon his conviction of the offense he was charged with in the indictment — felony DUI. In light of the Supreme Court's holding in Ex parte Formby, [Ms. 1972151, August 27, 1999] ___ So.2d ___ (Ala. 1999), I cannot agree with the majority's conclusion that, in a felony DUI case, the state's failure to present the circuit court with pretrial proof of the prior DUI convictions warrants the transfer of the case to the municipal court or the district court. Once the circuit court acquires subject matter jurisdiction over a felony offense charged by way of indictment, the circuit court retains jurisdiction over the case until final disposition of all charges included in the indictment, even if the charge is ultimately disposed of as a misdemeanor. § 12-11-30(2), Ala. Code 1975; seeCrear v. State, 591 So.2d 530, 532 (Ala.Cr.App. 1991). Here, the circuit court acquired subject matter jurisdiction based on the charge in Thrasher's indictment. Ex parte Formby, ___ So.2d at ___. See Smith v. State, 609 So.2d 449, 450 (Ala.Cr.App. 1992); and Ross v. State, 529 So.2d 1074, 1078 (Ala.Cr.App. 1988). Thus, regardless of whether Thrasher's prior misdemeanor DUI convictions could be used for purposes of enhancing his sentence, Thrasher's case should have remained with the circuit court until all charges included in the indictment had been disposed of.
Baschab, J., joins.