# McDuffie v. State

> Court of Criminal Appeals of Alabama · November 14, 1997 · 712 So. 2d 1118

URL: https://www.frixlaw.com/law-library/cases/9934780

## Case

- **Full name:** Sidney Earl McDuffie II v. State.
- **Court:** Court of Criminal Appeals of Alabama
- **Decided:** November 14, 1997
- **Citations:** 712 So. 2d 1118; 1997 WL 707079
- **Precedential status:** Published
- **Opinion:** Dissent by Cobb
- **Judges:** Brown, Cobb
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled in part, on other grounds by Ex Parte Holbert, 2008 Ala. LEXIS 150 (2008).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9934780

## Opinion text

This case arises out of a conviction of the felony offense of driving under the influence of alcohol (D.U.I.), a violation of §§ 32-5A-191 (a) and 32-5A-191 (h), Ala. Code 1975. The majority affirms the conviction based on State v. Parker , [Ms. CR-95-1435, September 26, 1997] ___ So.2d ___ (Ala.Cr.App. 1996) (on rehearing). In Parker , this court held that § 32-5A-191 (h) sets out a separate substantive offense that includes as elements a defendant's prior D.U.I. convictions. Judge Long dissented from the decision in Parker , and on rehearing authored a dissenting opinion in which I concurred. In that dissent he noted that the majority's interpretation of the D.U.I. statute was inherently problematic. Because this case presents one of those problems, I respectfully dissent.
In this case, McDuffie argued before the trial court and on appeal that the indictment stated a charge that was impossible for the State to prove. Specifically, he argued that the State, in this instance, could not prove a "fourth conviction" as an element of the felony offense of D.U.I., because as he states, it will not have occurred at that point. I agree and note Judge Long's observations in his dissent in Parker:
"[B]ecause the current conviction obviously cannot occur before the close of the state's case-in-chief, the state can never hope to prove to a jury all of the essential elements of the offense. Only by engaging in a fiction that the current conviction has already occurred, even before a verdict has been returned, can the trial court ever rule, when presented with a motion for a judgment of acquittal following the state's case, that the state has established a prima facie case of a substantive offense."
Parker , ___ So.2d at ___.
While I recognize that Parker is controlling law, I feel compelled to again note my *Page 1121
disagreement with the majority's interpretation of § 32-5A-191 (h). Therefore, I respectfully dissent.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9934780. Public record. Not legal advice.