State v. Britain

Court of Criminal Appeals of Alabama

State v. Britain

489 So. 2d 700, 1986 Ala. Crim. App. LEXIS 6056

CourtCourt of Criminal Appeals of Alabama

DecidedMay 13, 1986

Docket1 Div. 216

StatusPublished

This text of 489 So. 2d 700 (State v. Britain) 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

State v. Britain, 489 So. 2d 700, 1986 Ala. Crim. App. LEXIS 6056 (Ala. Ct. App. 1986).

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Opinion

PATTERSON, Judge.

The appellee, John E. Britain, alias, was charged by a three-count indictment; two counts charged Britain with the offense of use of official position or office for personal gain, as proscribed by § 36-25-5, Code of Alabama 1975. On Britain’s motion to dismiss, the circuit court dismissed these two counts on the ground that § 36-25-27(a), the punishment provision for a violation of the Code of Ethics, is unconstitutional because it authorizes both misdemeanor and felony punishment for the same offense, in violation of Article 1, Section 6, of the Alabama Constitution of 1901.

By virtue of our supreme court’s holding in Newberry v. State, [Ms. 85-322, April 18, 1986] (Ala.1986), we find that the punishment provision of Code of Ethics is constitutionally valid. In Newberry, the court determined that the punishment provision of the vehicular homicide statute (which like the instant statute provides for punishment in both the felony and the misdemeanor range) “does not violate the guarantees of Article 1, Section 6, of the Alabama Constitution, because from a reading of the statute a defendant could be reasonably apprised of the accusation against him or her and the possible penal consequences.” Slip op. at page 5. We hold likewise in regard to § 36-25-27.

Accordingly, we reverse and remand this cause for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

All Judges concur.

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PATTERSON, Judge.

The appellee, John E. Britain, alias, was charged by a three-count indictment; two counts charged Britain with the offense of use of official position or office for personal gain, as proscribed by § 36-25-5, Code of Alabama 1975. On Britain’s motion to dismiss, the circuit court dismissed these two counts on the ground that § 36-25-27(a), the punishment provision for a violation of the Code of Ethics, is unconstitutional because it authorizes both misdemeanor and felony punishment for the same offense, in violation of Article 1, Section 6, of the Alabama Constitution of 1901.

By virtue of our supreme court’s holding in Newberry v. State, [Ms. 85-322, April 18, 1986] (Ala.1986), we find that the punishment provision of Code of Ethics is constitutionally valid. In Newberry, the court determined that the punishment provision of the vehicular homicide statute (which like the instant statute provides for punishment in both the felony and the misdemeanor range) “does not violate the guarantees of Article 1, Section 6, of the Alabama Constitution, because from a reading of the statute a defendant could be reasonably apprised of the accusation against him or her and the possible penal consequences.” Slip op. at page 5. We hold likewise in regard to § 36-25-27.

Accordingly, we reverse and remand this cause for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

All Judges concur.

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Bluebook (online)

489 So. 2d 700, 1986 Ala. Crim. App. LEXIS 6056, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-britain-alacrimapp-1986.