Formby v. State

750 So. 2d 581, 1997 Ala. Crim. App. LEXIS 371, 1997 WL 779046
CourtCourt of Criminal Appeals of Alabama
DecidedDecember 19, 1997
DocketCR-96-0204
StatusPublished
Cited by1 cases

This text of 750 So. 2d 581 (Formby v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Formby v. State, 750 So. 2d 581, 1997 Ala. Crim. App. LEXIS 371, 1997 WL 779046 (Ala. Ct. App. 1997).

Opinion

BROWN, Judge.

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 §§ 32-5A-191(a)(2) and 32-5A-191®,1 Code of Alabama 1975. He was sentenced to four years’ imprisonment.

I.

The appellant contends that the trial court erred by failing to give limiting instructions to the jury regarding its consideration of his three prior D.U.I. convictions. The state argues that this issue has not been preserved for appellate review.

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 dur[584]*584ing 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, 571 So.2d 320, 327 (Ala.Cr.App.1989), rev’d on other grounds, 571 So.2d 333 (Ala.1990).

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, 607 So.2d 344, 346 (Ala.Cr.App.1992); Griffin v. State, 591 So.2d 547, 550 (Ala.Cr.App.1991). Thus, the appellant’s assertion that the trial court erred by failing to give special limiting instructions to the jury regarding its consideration of the appellant’s three prior D.U.I. convictions has not been preserved for our review.

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, 562 So.2d 306, 308 (Ala.Cr.App.1990), quoting Hubbard v. State, 500 So.2d 1204, 1215 (Ala.Cr.App.1986). In Cain, we held that the de[585]*585fendant’s due process rights were not violated, although the indictment against him, which was read to the jury, referred to a prior conviction for the unlawful possession of marijuana. We based our decision on the fact that a prior conviction of second-degree unlawful possession of marijuana—or unlawful possession of marijuana for personal use—was an element of first-degree unlawful possession of marijuana, and thus, must have been alleged and proven at trial. Similarly, in State v. Parker, 740 So.2d 421 (Ala.Cr.App.1996), opinion on rehearing, 740 So.2d at 424 (Ala.Cr.App.1997), this Court held that an indictment for felony D.U.I. should contain a reference to the three prior D.U.I. convictions because those convictions are a material element of the offense.

II.

The appellant also challenges the constitutionality of Alabama’s felony D.U.I. statute. Specifically, he argues (1) that the statute violates Article I, § 6, and Article IV, § 45, of the Alabama Constitution of 1901, because, he says, it charges both a misdemeanor and a felony; (2) that the statute is unconstitutional because, he says, it does not inform the defendant that he is being charged with a felony at the time of his arrest; (3) that the statute is unconstitutional because, he says, it contains more than one subject; and (4) that the statute improperly authorizes a municipal court to prosecute a felony.

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 § 32-5A-191 is unconstitutional because, he says, it makes driving under the influence both a misdemeanor and a felony offense. In Newberry v. State, 493 So.2d 995 (Ala.1986), the Alabama Supreme Court addressed this issue in the context of Alabama’s vehicular homicide statute, noting that under Article I, § 6, of the Alabama Constitution of 1901, a defendant enjoys a constitutional right to be informed of the nature and cause of the accusation against him. However, the Supreme Court went on to hold that the fact that a statute provides a punishment ranging from misdemeanor to felony sentences does not make the statute unconstitutional.

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Related

Ex Parte Formby
750 So. 2d 587 (Supreme Court of Alabama, 1999)

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Bluebook (online)
750 So. 2d 581, 1997 Ala. Crim. App. LEXIS 371, 1997 WL 779046, Counsel Stack Legal Research, https://law.counselstack.com/opinion/formby-v-state-alacrimapp-1997.