Petition for Writ of Certiorari — Ziegler v. Alabama

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F ! ! ce fre

O% 322 auc 23 200

NO.: JFFICE OF THE CLERK

In The

Supreme Court of the United States

.

CRAWFORD ZIEGLER, III,

Petitioner,

vs.

STATE OF ALABAMA,

Respondents.

*

On Petition For A Writ Of Certiorari

To Review The Decision of the

Court of Criminal Appeals of Alabama

-®

PETITION FOR WRIT OF CERTIORARI

®

COUNSEL FOR PETITIONER:

CRAWFORD ZIEGLER, III, Pro Se

418 Scott Street “

Montgomery, Alabama 36104

(334) 263-9810

QUESTIONS PRESENTED FOR REVIEW

1. (A) Whether the Court of Criminal Appeals of Alabama

committed reversible error when it affirmed the denial of

Petitioner’s Motion to Dismiss a felony warrant and felony

indictment issued pursuant to 32-5A-191 (a) and 32-5A-191

(h), Code of Alabama 1975, as amended, and/or

Petitioner's Motion For Acquittal/To Vacate his convic-

tionand sentence for felony DUI, when, as here, the

evidence shows that the felony warrant and affidavit upon

which the indictment is based were unsworn documents,

failed the felony probable cause test, failed to disclose that

the warrant is based upon anyone’s personal know!l-

edge, and failed to predicate the charged offense upon

prior guilty plea convictions shown to be knowingly and

voluntarily given. The Petitioner contends that said

indictment, warrant and conviction is contrary to the

Fourth and Fourteenth Amendments to the United States

Constitution and relevant decisions of this Court.

(B). Whether the utilization of four (4) prior D.U.I. guilty

plea convictions as an element of the felony charged under

32-5A-191 (a) and 32-5A-191 (h) Code of Alabama 1975,

represents a Fourteenth Amendment Due Process

violation, when, as here, the guilty pleas to the DUI

charges were not affirmatively shown to be knowingly

and voluntarily given. The Petitioner contends that the

DUI guilty pleas required for application of 32-5A-191 (a)

and 32-5A-191 (h) Code of Alabama 1975, became an

Il.

il

element of the Alabama felony DUI statute thereby

requiring the State to show that said pleas were knowingly

and voluntarily given. Petitioner contends that the State

failed to do so contrary to the Fourteenth Amendment to

the United States Constitution and relevant decisions of

this Court.Evidence seized and obtained by police officers

in violation of the Fourth and Fourteenth Amendments to

the United States Constitution and found that Petitioner's

wife voluntarily consented to a search of Petitioner's

residence contrary to relevant decisions of this Court. The

Petitioner contends that the search and seizure does not

qualify as a search incidental to arrest and that the totality

of the circumstances and evidence presented at his Motion

to Suppress hearing below clearly reveals that a person

exercising “reasonable caution” could not find the consent

to search his residence “voluntary.”

Whether the indictment and conviction of Petitioner under

32-5A-191(a) and 32-5A-191(h), Code of Alabama 1975, so

deprived Petitioner of a defense to said charge, as to

constitute a prosecution and conviction of Petitioner by

application of a ex post facto law contrary to Article 1§ 9,

Cl. 3 of the Constitution of the United States. Petitioner

contends that convictions predating the 1997 statute

cannot be used because they deprive him of a defense

that previously existed.

ill

PARTIES TO THE PROCEEDINGS

Petitioner:

Crawford Ziegler, Ill, Pro Se

418 Scott Street

Montgomery, Alabama 36104

(334) 263-9810

Respondent:

State of Alabama

Counsel for Respondent:

The Honorable Bill Pryor

Attorney General of Alabama

Alabama State House

11 South Union Street, Suite 310

Montgomery, Alabama 36130-0152

(334) 242-7300

TABLE OF CONT: NTS

PAGE(S)

QUESTIONS PRESENTED FOR REVIEW .........:c::s:ssseseseeeseenens i

PARTIES TO THE PROCEEDINGS ..........:c:cesesssssssesesnenenenenenes iii

PETITION FOR A WRIT OF CERTIORARI ..........::c:eeseeeeeeenens 1

OPINIONS BELOW. ..........:::ssssssssseseseseeeeseeseenenensnsssscarsnenenesnenenens 2

JURISDICTION ..........-scscssssssessssessssesssseesessensesenesnesesssensneseenenseneens 2

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED ..........scscesseseseseseseenetenenencacensnsnssaenenenees 3

STATEMENT OF THE CASE .........c:cccsssssseseseeeenenenenenesssnssssnnees 4

REASONS FOR GRANTING THE WRIT ........-..:cscesseeseeeeeenes 18

COINICILIUISIOIN ....ccco2n2esasesosasnesssscassescosasnsessacsnsennsisosssanasesssneseess 25

INDEX TO APPENDICES

A. Opinion of the Alabama Court of Criminal

Appeals Affirming the Trial Court's Decision...... App. 1-9

B. Order of the Alabama Court of Criminal

Appeals’ Overruling the Application for

Rehearing and Denial of 39(k) Motion............-...+++ App. 10

C. Opinion of the Supreme Court of Alabama

Denying The Petition for Writ of Certiorari ..... App. 11-12

D. Section 32-5A-191 (a) Code of Alabama 1975,

AS AMENAE|M .............c.cssesecrcsererecnrnseseserssnsncacscerocnsscoeers App. 13

Section 32-5A-191 (h) Code of Alabama 1975,

AS AMENAE ..............cscccssecsreeccsssrsecsssesscssssssssceees App. 14-15

vi

TABLE OF AUTHORITIES

PAGE(S)

Beazell v. Ohio, 269 U.S. 167, 169-170, 46 S.Ct. 68,

GA, FE EAE BR TO I sinisinitntndahetnahetisbaaintintnsianvisssainranies 20

Boykin v. Alabama, 395 US 238, 89 S.Ct. 1709,

FE re whcchsintitenisittnnstiicenininiins 1,5, 8, 10, 12, 17, 19

Falter v. United States,23 F. 2d 420 (1928) ......ccececsceseeseeeseeeeee 25

Giordenello v. United States, 357 U.S. 480 (1958) .......ceeeeeee 19

Johnson v. United States, 333 U.S. 10 (1948) ...scssscsssssssssssssee 19

Land v. Cooper 34 So 2d 313 (Ala. 1948) .....cceeeeeeeeneneeees 19, 20

Lo-Ji Sales, Inc., v. New York, 442 U.S. 319, 328 (1979) .........+.. 19

Miosore 0. State, 43.N.1.L.. 203 CIGB1) .ncncseronessoccsscnssncssecssssensssscoses 25

Tyson v. John Mansfield Sales Corp., 399 So2d 263,

DEE FED Ga. FIED viescrsccteieninsinnniasnrninsaninieidibilittinigsicuninanines 19, 22

Weaver v. Graham, 450 US. 24, 28, 101 S.Ct. 960,

GD, OF CTE CO icrsisscesctenicticnincsieninitatiuanicinbistnicsnnitainn 19, 20

Amendment IV, the Constitution of the United

as Ak FI oii icciictsniadiainioimianniaeieiions 2, 3, 6, 14, 18, 19

vil

Amendment XIV, the Constitution of the United

LF En Ce aD. Ae 3, 6, 18, 19, 21

Article 1, §9, Cl. 3, the Constitution of the United

DORAS CE ROGIER cccccnsssinciitiisisiciaibinisiitiaiiaabianappaiicisiiiiiaiia 1,3, 6, 10

United States Constitutional Amendment V, XIV .......... 13, 21

Article 95, Alabama Constitution of 1901 .................. 16, 21, 22

32-5A-191(a), Code of Alabama 1975.......... 1, 4, 7,8, 9, 11, 13, 18

32-5A-191(f), Code of Alabama 1975 ..........cssssssssessesesesesenesenenees 21

32-5A-191(g), Code of Alabama 1975 .........cccccsssssesesereesesees 15, 16

32-5A-191(h), Code of Alabama 1975.0... 1, 4, 7, 8,9, 11,

13, 14, 15, 20

Rule 39(k), Alabama Rules of Appellate Procedure ...............00+« 2

Rule 15.6, Alabama Rules of Criminal Procedure .............«. 14,15

Rule 20.3, Alabama Rules of Criminal Procedure ..............0.00+ 16

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Crawford Ziegler, petitions this Court fora Writ

of Certiorari to review a Judgment and Order of the Court of

Criminal Appeals of Alabama affirming his State Court

conviction for the offense of felony DUI, under 32A-5A-191(a)

and 32-5A-191(h) Code of Alabama 1975. Petitioner contended

at trial and on appeal to the Alabama Court of Criminal

Appeals that the appropriate procedure for obtaining a felony

warrant and indictment on the charge of felony DUI was not

followed, contrary to the Fourth and Fourteenth Amendments

to the United States Constitution; that the prior guilty plea

convictions used to obtain a warrant, a felony indictment, a

felony conviction and to enhance the sentence were elements

of the felony charged. He contends that the DUI guilty pleas

were not appropriately counseled and not shown to be

voluntary guilty pleas as mandated by Boykin v. Alabama, 395

U.S. 238, 89S.Ct. 1709, 23 LEd 2d 274 (1969) contrary to the Due

Process Clause of the Fourteenth Amendment to the United

States Constitution. Moreover, Petitioner alleged; that his

indictment, conviction and sentence under the Alabama

Felony DUI Statute constitutes the application of an ex post

facto law by denying him a defense that had previously existed

by prohibiting the State from using certain prior convictions of

misdemeanor DUI offense to enhance punishment, etc., where

such convictions were obtained more than five (5) years prior

to a felony DUI charge. Petitioner contends that said statute

violates Article 1, § 9, Cl. 3, Constitution of the United States.

°

OPINIONS BELOW

1. The Opinion of the Court of Criminal Appeals of Alabama

affirming the conviction, sentence and imposition of fines

by the Circuit Court, and adjudicating the Constitutional

issues in Crawford Ziegler, IIL vs. State of Alabama, CR-

99-1006 has not been reported. The opinion is dated

February 23, 2001, and appears at Appendix A, p. 1-9.

2. The Order of the Court of Criminal Appeals of Alabama in

Crawford Ziegler, IIL vs. State of Alabama, CR-99-1006,

overruling Petitioner's Application for Rehearing and

denying Petitioner's Motion to Review and Include

Additional Facts Under Rule 39(k), Alabama Rules of

Appellate Procedure, was not reported. The Order is

dated March 16, 2001, and appears at Appendix B, p. 10.

3. The Order of the Supreme Court of Alabama denying

Ziegler’s Petition for a Writ of Certiorari to the Court of

Criminal Appeals of Alabama in Supreme Court case Ex

parte Crawford Ziegler, Sup.Ct.No. 1001136 has not been

reported. The Order is dated May 25, 2001, and appears at

Appendix C, p. 11-12.

®

JURISDICTION

The Judgment of the Court of Criminal Appeals of

Alabama adjudicating an issue presented under the Fourth

3

and Fourteenth Amendments to the United States Constitu-

tion was entered on February 23, 2001, Appendix A, p. 1-9. A

rehearing was sought in the Court of Criminal Appeals of

Alabama and denied on March 16, 2001, Appendix B, p. 10. A

Petition for Writ of Certiorari to the Court of Criminal Appeals

of Alabama was sought in the Supreme Court of Alabama. The

Supreme Court of Alabama denied the Petition for a Writ of

Certiorari to the Court of Criminal Appeals of Alabama on

May 25, 2001, Appendix C, p. 11-12. A rehearing was not

required or sought in the Supreme Court of Alabama. The

jurisdiction of this Court is invoked under 28 USC § 1257.

¢

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

1. The Fourth Amendment, United States Constitution.

2. The Fourteenth Amendment, United States Constitution.

3. Article 1, § 9, Cl. 3, United States Constitution.

4. Thestatute under which Petitioner was prosecuted was 32-

5A-191 (a) and 32-5A-91 (h), Code of Alabama 1975. The text

of the statute appears at Appendix D, p. 13-15.

%

+

STATEMENT OF THE CASE

The facts necessary to the questions now raised are stated

as follows:

A. Course of Proceedings:

The Petitioner, Crawford Ziegler, was arrested on April 23,

1999. He was initially charged with various outstanding

warrants and the misdemeanor offense of DUI. The

misdemeanor DUI was called for trial before the District Court

of Montgomery County, Alabama, on May 6, 1999. The State

of Alabama, at that time, moved for a Continuance of the Case,

which Motion was granted by the District Court. On July 28,

1999, pursuant to an alleged affidavit and felony warrant,

Defendant Ziegler was charged with the offense of felonious

driving under the influence, pursuant to 32-5A-191(a) and 32-

5A-191(h), Code of Alabama 1975. The Affidavit and Warrant

were presented to The Grand Jury of Montgomery County,

Alabama, during its October Term, 1999. On October 14, 1999,

The Grand Jury of Montgomery County, Alabama, indicted

Petitioner for the offense of felonious driving under the

influence. :

The felony DUI case was set for Trial on January 24, 2000.

Thereafter, Defense Counsel moved to suppress, etc., and a

Motion to Dismiss the indictment was made. Defendant's

Motions, by agreement, were taken under advisement by the

Circuit Court of Montgomery County, Alabama. Mr. Ziegler,

on the date scheduled for Trial, waived his rights to a Trial by

Jury, consented to a Judge Trial and agreed that the Court

should reserve ruling on his Motion to Dismiss the Indictment,

tie+ a. ate al el

Se)

a

until all evidence had been presented.

The case was tried before the Circuit Court of Montgomery

County, Alabama, on January 24, 2000. After hearing the

evidence and legal arguments of Counsel, the Court denied

the Motion to Dismiss as filed by Petitioner, found Petitioner

guilty of felonious driving under the influence and set a

Sentencing Hearing for February 22, 2000. Defense Counsel

then filed a Motion for Judgment of Acquittal/To Vacate

alleging that: (1) The felony warrant and the indictment were

not based on probable cause. That is, the State failed to present

legal evidence based on an affidavit setting out probable cause

and a source of personal knowledge when it obtained an

unswom warrant, unsworn affidavit and the indictment.

Since the unsworn warrant and affidavit were presented to the

Grand Jury, Ziegler alleged that the State failed to present

evidence before the Grand Jury that he had committed a felony

offense and that the former guilty plea convictions used by the

State to obtain the felony warrant, indictment, conviction and

sentence were an element of the felony charge and were not

shown to be knowingly and voluntarily obtained as required

by Boykin v State of Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23

LEd 2d 274 (1969) contrary to both the Fourth and Fourteenth

Amendments to the United States Constitution; Ziegler also

alleged that application of the statute deprived him of a

defense and constitutes a prosecution, conviction and sentence

obtained by application of an ex post facto law contrary to

Article 1, § 9, Cl. 3, Constitution of the United States..

The Motion for Judgment of Acquittal/To Vacate was

denied on February 22, 2001. The Petitioner was then

6

sentenced to a term of five years imprisonment, split to serve

18 months and two (2) years on probation, fined a sum of

$4,100.00 and ordered to surrender his driver's license for a

period of five (5) years. Ziegler appealed to the Court of

Criminal Appeals of Alabama, which affirmed the Trial

Court's Judgment on February 23, 2001.

A Petition for a Writ of Certiorari was timely filed with the

Supreme Court of Alabama but denied on May 25, 2001. This

Petition is filed within ninety (90) days of the Judgment or

Order of the Supreme Court of Alabama denying a Petition for

Writ of Certiorari to Review the Judgment and Order of the

Alabama Court of Criminal Appeals. Moreover, this

Petitioner seeks relief pursuant to both the Fourth and

Fourteenth Amendments to the Constitution of the United

States and Article 1,§ 9, Cl. 3, Constitution of the United States.

B. Specific Facts Necessary for a Review of the

Constitutional Issues Involved.

Mr. Crawford Ziegler was arrested on April 23, 1999, by an

Alabama State Trooper for various outstanding warrants and

later that day charged with the misdemeanor offense of

Driving Under the Influence of Alcohol (R-17-24). The

Petitioner now concedes that the Alabama State Trooper, Mr.

Scott Duncan, had probable cause to make the initial arrest’.

The misdemeanor DUI offense was called for Trial by the

District Court of Montgomery County, Alabama, on May 6,

‘Petitioner was initially arrested on various outstanding warrants, not

associated with the proceedings below.

1999. At this time and place, the District Attorney of

Montgomery County, Alabama, moved for a General

Continuance of the case, which was granted. On July 28, 1999,

Alabama State Trooper, Scott Duncan, gave an alleged

Affidavit in support of a felony warrant charging Petitioner

with the offense of felonious driving under the influence

contrary to 32-5A-191 (a) and 32-5A-191(h) Code of Alabama

1975 (R-30-34). Thereafter, Petitioner was arrested for the

felony offense charged by the warrant. The warrant alleged

that Petitioner had been previously convicted of at least four

(4) DUI charges. This felony warrant and alleged affidavit was

presented to the Montgomery County Grand Jury during its

October Term, 1999. Based on this felony warrant and

affidavit, the Montgomery County Grand Jury issued an

Indictment charging the Petitioner with the offense of

felonious driving under the influence. The Indictment was

issued on October 14, 1999. The offense must be proven by

showing, as an element of the felony offense, that the

Defendant has been previously convicted of four, or more,

misdemeanor DUI offenses. The Circuit Court of

Montgomery County, Alabama, set this matter for Trial on

January 24, 2001. Defense Counsel moved to Dismiss the

Indictment alleging, among other things: that the felony

indictment of Petitioner for DUI violated both the Fourth and

Fourteenth Amendments to the Constitution of the United

States in that the arrest and Indictment of Petitioner for the

offense was not predicated upon a valid sworn felony warrant,

affidavit, or an indictment based upon probable cause. Ziegler

contended that the warrant and affidavit were unsworn and

8

that the affidavit did not set forth sufficient facts to show that

probable cause existed for a felony warrant or indictment

under 32-5A-191 (a) and 32-5A-191 (h) Code of Alabama 1975.

Moreover, he alleged that they did not disclose the source of

any personal knowledge relied upon to obtain the warrant. He

also contended that the warrant and indictment were based on

prior guilty plea convictions not appropriate for such

purposes contrary to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct.

1709, 23 LEd 2d 274 (1969) (R-34-42). He contends that prior

guilty plea convictions was an element of the felony offense

and cannot be so proven unless shown to be knowingly and

voluntarily entered. Moreover, since the warrant and affidavit

of Trooper Duncan was used to obtain the felony indictment,

Defendant alleged that the indictment was not based upon

probable cause.

The case was called for Trial on January 24, 2001. On said

date, Ziegler waived a trial by jury, consented to a trial by the

Court and agreed that the Trial Court hear all evidence before

entering its Order on the Motion to Dismiss. The State then

called two (2) principal witnesses. The State of Alabama called

Mr. Scott Duncan as its first witness. Mr. Duncan testified that

he was an Alabama State Trooper and had been so employed

for three (3) years (R-16-17). Mr. Duncan further testified that

he was on patrol in Montgomery County, Alabama, on April

23, 1999, and noticed a car driving south on U.S. Highway 231

at a speed of approximately forty (40) miles per hour. The car

was being driven by Mr. Crawford Ziegler, the Petitioner.

Trooper Duncan stated that the car began to weave and he,

thereafter, stopped the vehicle in order to check the situation

9

(R-17-19). Upon approaching the car, Mr. Duncan smelled a

strong odor of alcohol and, in fact, saw alcohol present in the

vehicle. After obtaining the identification of Petitioner,

Trooper Duncan reported his stop by radio and found that

existing warrants were outstanding for Mr. Crawford Ziegler

(R-23-24). Trooper Duncan then arrested Mr. Ziegler on these

warrants and proceeded to the Montgomery County Jail.

After execution of the warrants at the jail, Trooper Duncan

then gave Mr. Ziegler a field sobriety test in the hallway of the

jail. The test consisted of a heel and toe test and a one-leg stand.

Trooper Duncan stated that Mr. Ziegler failed both tests and

was then arrested for the misdemeanor offense of Driving

Under the Influence of Alcohol (R-23-26). This misdemeanor

case was set for Trial on May 6, 1999, but Continued on Motion

of the State. Trooper Duncan then testified that he was

approached by the District Attorney’s Office on or about July

28, 1999, concerning a proposed affidavit. Mr. Duncan

testified that he executed a document in the form of a proposed

affidavit concerning his arrest of Mr. Ziegler. Thereafter, a

felony warrant, based on this Affidavit, was obtained in order

to arrest Mr. Crawford Ziegler for violation of 32-5A-191(a)

and 32-5A-191(h) Code of Alabama 1975. The arrest was made

and Mr. Ziegler was thereafter indicted by the Grand Jury of

Montgomery County, Alabama. On cross-examination,

Trooper Duncan testified that the Affidavit that he executed on

July 28, 1999, stated only facts that he knew at the time of the

arrest of Mr. Ziegler for the misdemeanor D.U.I. He testified

that the matter concerning prior offenses committed by Mr.

Ziegler was not a part of his knowledge at the time of the

10

Affidavit. Furthermore, he stated that he was not placed on

oath at the time of the issuance of the Affidavit and Warrant.

Trooper Duncan then admitted that the only factual matter

that he was aware of at the time of making the Affidavit

concerned the events surrounding the arrest of Mr. Ziegler on

the afternoon of April 23, 1999, and did not concern knowledge

of prior DUI offenses committed by Mr. Ziegler (R-30-34).

Defense Counsel requested that the Court dismiss the

Indictment in that the Warrant improperly charged Mr.

Ziegler with the felony offense of felonious driving under the

influence and was not based on a sworn warrant or affidavit

that disclosed the source of anyone’s personal knowledge . He

alleged that the indictment was not based on probable cause.

Moreover, Defense Counsel contended that the evidence

presented to the Grand Jury, the warrant and affidavit, failed

to comport with the Fourth and Fourteenth Amendments to

the United States Constitution (R-34-42). He contended that

the evidence presented required a dismissal of the indictment.

He then contended that the alleged prior guilty plea

convictions relied upon by the State to obtain the warrant and

indictment failed to disclose that Defendant had been

appropriately represented by counsel and that the records or

documents relied upon failed to affirmatively show that the

guilty pleas were voluntarily given as required by the decision

of Boykin v. Alabama, 395 U.S. 238 (1969) (R-58-60). Defense

Counsel also alleged that he was prosecuted under an ex post

facto law and was deprived of defenses that had existed prior

to the passage of the felony statute, contrary to Article 1,§ 9, Cl.

3, Constitution of the United States.

a

;

soo rr

11

A deputy in the Montgomery County Sheriff's Office was

also called as a State’s witness (R-43-49). He testified that he

had taken some scientific evidence from Mr. Ziegler at the jail

and ran a test. He referred to the test as a Drager Test.

However, he testified that he could not produce the

authenticated results of the test. After such testimony Defense

Counsel renewed his Motion to Dismiss and alleged that the

evidence also failed to show that the Defendant was guilty of

misdemeanor driving under the influence of alcohol or the

offense charged under 32-5A-191 (a) and 32-5A-191 (h), Code

of Alabama 1975 (R-58-60). He also alleged that he was

prosecuted under an ex post facto law. The Trial Court denied

Petitioner's Motion to Dismiss, found Petitioner guilty of

felonious driving under the influence and set a Sentencing

date of February 22, 2000.

Defense Counsel next filed a Motion for Judgment of

Acquittal/To Vacate (R-87-95). The Petitioner alleged in his

Motion for Judgment of Acquittal/To Vacate that the State's

failure to produce a sworn warrant and affidavit based on a

factual statement of someone’s personal knowledge or the

source of that personal knowledge, was insufficient to obtain a

felony warrant in this case and that the presentation of such

warrant and alleged affidavit to the Grand Jury failed the

probable cause test. He contended that it was insufficient

evidence upon which to base an indictment. He submitted

that the presentation of this evidence to the Grand Jury of

Montgomery County, Alabama, did not give the Grand Jury

probable cause to indict Ziegler for the felony offense of DUI.

Since he contended that the warrant and affidavit were both

12

void, he further alleged that these failures went to the

jurisdiction of the Court. Defense Counsel again contended

that the evidence of prior convictions obtained as a result of

guilty pleas did not meet the evidentiary and Constitutional

requirements of Boykin v. Alabama, 395 U.S. 238 (1969), and

could not be used as an element for his felony indictment,

conviction or to enhance punishment.

The Trial Court thereafter denied Petitioner’s Motion For

Acquittal/To Vacate and sentenced Petitioner to a term of five

(5) years imprisonment, to be split under the Alabama Split

Sentence Act. The Court ordered the Petitioner to serve

eighteen (18) months imprisonment, two (2) years probation,

imposed a fine of Forty-One Hundred ($4,100.00) Dollars and

ordered revocation of Petitioner's driver's license for a period

of five (5) years. Notice of Appeal was given and an Appeal

Bond was set at Five Thousand ($5,000.00) Dollars (R-61). An

Appeal was taken. o

Petitioner also alleged at Trial and on Appeal that:

1. Ziegler was indicted by the Grand Jury sitting for the

October Term, 1999 for “did drive or was in actual physical

control of a vehicle while there was .08 percent or more by

weight of alcohol in his blood, or while he was under the

influence of alcohol, or while he was under the influence of a

controlled substance to a degree which rendered him

incapable of safely driving, or while he was under the

combined influence of alcohol and a controlled substance to a

degree which rendered him incapable of safely driving, or

NL LSE Meer ere

13

while he was under the influence of any substance which

impaired his mental or physical faculties to a degree which

rendered him incapable of safely driving, in violation of

Sections 32-5A-191 (a) and 32-5A-191 (h) of the Code of Alabama,

1975, as amended.

2. The indictment appears at C-5-6, the Complaint and

Affidavit upon which the Grand Jury indicted Ziegler appear

at C-9-10.

3. Ziegler filed a Motion to Continue Trial wherein

Ziegler requested that the Court continue the Trial date in

order for Ziegler to place the Attorney General of the State of

Alabama on notice of the Challenge of the Constitutionality of

various portions of the D.U.I. Statutes. Said Motion to

Continue Trial appears at C-14 -15. Said Motion was granted.

Ziegler filed a Motion to Suppress and Motion to Dismiss,

which Motion to Suppress appears at C-16-18. In paragraph

one of said Motion to Suppress Ziegler incorporated his

Motion to Dismiss by reference thereto. In paragraph 5 of said

Motion to Dismiss, appearing at C-17 of the Motion to

Suppress, Ziegler argued that any prior D.U.I. offenses should

be suppressed by reason of (a) double jeopardy (b) judicial

estoppel (c) that the D.U.I. Laws violate due process of law

guaranteed through the Fifth and Fourteenth Amendments of

the United States Constitution (d) that Ordinance 32-5A-191(h)

was a strict liability statute which also violated due process of

law guaranteed by the Fifth and Fourteenth Amendments as

well as State Constitutional provisions, as well as violated

14

constitutional prohibition against cruel and unusual punish-

ment. Paragraph 14 of the Motion to Dismiss was the

argument that 32-5A-191(h) and the doctrine of Judicial

Estoppel barred the State from prosecuting Ziegler for a felony

conviction by reason of the Department Public Safety and the

prior 1997 Amendments to the D.U.L. laws wherein all traffic

offenses older than five years were deleted from the driving

record and could not be used against a defendant once a five-

year period had past (C-23).

Paragraph 15 of the Motion to Dismiss stated that by

reason of the pre-1997 five year limitations contained in the

Judicial Estoppel argument, argued in Paragraph 14, that the

1997 amendment to the D.U.1. laws 32-5A-191(h) deprived a

defendant of a defense previously existing under the law and

therefore represented an ex post facto application of 32-5A-

191(h) (C-23).

4. Notice to the Attorney General of the State of Alabama

pursuant to 6-6-227, 1975, Code of Alabama, of challenge as to

constitutionality of State Statute 32-5A-191 (a)(h) appears at C-

34-C-40, pages C-36 through 40 being a Motion to Dismiss

which was attached to the Notice to the Attorney General.

5. The State filed a Motion to Continue the trial date of

December 14, 1999, which Motion to Continue appears at C-40-

51). Ziegler filed a list of authorities in support of the Motion

to Dismiss which appears at C-52-54). Ziegler filed a Motion in

Limine and Motion under 14.6 which appears at C-55-57).

Paragraph 5 of the Motion in Limine, motion under Rule 15.6

15

ARCP, requested that the State be prohibited from utilizing

any prior D.U.I. convictions which were in excess of five years

of age asking that the same not be utilized for enhancement

purposes under 32-5A-191(h) based upon the principals of

judicial estoppel and ex post facto as violating judicial

principals as wel! as the Defendant’ constitutional rights (C-

56).

Paragraph 6 reiterated the fact that the pre-1997 D.U.I.

statute could be construed as a statute of limitations where a

conviction in excess five years of age cannot be used in a

subsequent D.U.I. prosecution which in effect was made a

statute of limitations. That 32-5A-191(h) was remedial could

not be applied retroactively and was also violative of ex post

facto principals and therefore unconstitutional (C-56).

7. Ziegler filed an Amended Motion to Dismiss which

appears at C 58.73. Paragraph 4 of the Amended Motion to

Dismiss stated that the defendant could not be charged with a

third offense since the State had failed to produce two prior

offenses occurring within a five year period. That the 1997

Amendment 32-5A-191(f) deals with a second conviction

within a five year period, subsection (g) was amended by the

1997 Legislative Amendment which omitted the “within a five

year period” provision, subsection (h) was the enhancement

provision of the 1997 Amendment (C-58-59). Paragraph 5 of

the Amended Motion stated that the omission of the “within a

five year period” as to subsection (g) of 32-5A-191 required

said subsection to be read with the prior statute for its failure to

state the “within a five year period” limitation and thus Ziegler

16

requested that the State be prohibited from charging Ziegler

with a third conviction within a five year period under 32-5A-

191(g) (C-59-60). In said paragraph 7 appearing at page C-61

Ziegler argued that use of a conviction older than five years or

the pre-1997 32-5A-191 contained the five year limitation

period was violative of Section 95 of the Alabama Constitution of

1901. (C-61-63).

8. Ziegler’s Motion for Judgment of Acquittal made

pursuant to Rule 20.3 Alabama Rules of Criminal Procedure

appears at C-87-95.

9. Ziegler’s Appeal Bond appears at C-96-97.

10. The Notice of Appeal appears at C-98.

11. The Transcript of Record and Judgment appears at

C-99.

12. The Reporters Transcript Order appears at C-100.

13. The Court of Criminal Appeals Docketing Statement

appears at C-101-102.

14. The Reporters Transcript appears at C-103 of the

transcript.

15. The Defendants Exhibits 1 and 2 appear at C-104-105.

17

16. The Certificate of Completion and Transmittal of

Record on Appeal by the Trial Clerk appears at C-106.

17. A Hearing was conducted on November 29, 1999. The

Transcript of which appears at R-2 through R-6. At page R-6

the Court reset the trial for December 13 to allow Ziegler to

notify the Attorney General to place the Attorney General of

the State of Alabama on notice so that the constitutional

arguments were not waived.

18. The Defendant Crawford Ziegler, an appellant herein,

waived his right to a jury trial at a November 29, 1999 hearing

which appears at R-6.

19. AtR-6 through 15 appears the argument on the Pretrial

Motions at the pretrial conference held-on December 8, 1999.

20. The bench trial of Ziegler appears at R-15 through R-63.

21. The Court denied the Motion to Dismiss made at the

end of the State’s case and found the Defendant guilty and set

sentencing for February 22, 2000, at 9:00 a.m. (R-57) R-58-R-60

counsel for Ziegler argued Ziegler’s’s Motion for Judgement of

Acquittal which was denied at R-60 by the Court line 8 and 9.

Objection was made at the sentencing hearing as to the State’s

introduction of certified copies of prior D.U.I. convictions. The

objection was that the prior D.U.I. convictions did not comply

with Boykin v. Alabama. The Judge overruled said objection at

Line 22, R-61. Ziegler was then sentenced at R-62 and R-63.

18

22. Verbal notice of appeal was made which appears at R-

63 Lines 12-22 with the Court setting the appeal bond at

$5,000.00 Lines 23-24 R-63. The Certificate of Completion of

the Reporters Transcript appears at R-64.

The case was affirmed by the Court of Criminal Appeals of

Alabama on February 23, 2001. An application for rehearing

was denied on March 16, 2001. A Petition For A Writ of

Certiorari to review the decision/judgment or order of the

Alabama Court of Criminal Appeals was filed with the

Alabama Supreme Court and denied on May 25, 2001. This

Petition for a Writ of Certiorari is made within ninety (90) days

of the Alabama Supreme Court's denial of Ziegler Petition For

a Writ of Certiorari to the Alabama Court of Criminal Appeals.

=

REASONS FOR GRANTING THE WRIT

1. The Alabama Court of Criminal Appeals committed

reversible error when it affirmed Petitioner’s conviction and

sentence below, because the felony indictment and warrant

was not based on probable cause, contrary to the Fourth and

Fourteenth Amendment to the United States Constitution.

That is, no probable cause existed for authentication of four (4),

or more, prior DUI guilty plea offenses, contrary to the Fourth

Amendment probable cause requirements for issuance of

indictment, warrants and no knowing and voluntary guilty

pleas were shown to have been given by Petitioner, but were

used as an element of his conviction under 32-5A-191 (a) and

I lA TE LS. ST EE eT eS EI I ee er ke RE oe IE

|

j

19

32-5A-191 (h) Code of Alabama 1975, contrary to the Fourteenth

Amendment Due Process requirement of the United States

Constitution. Petitioner contends that this Court has held: the

burden rest on the State to produce sufficient data to meet the

probable cause requirement of the Fourth Amendment. See,

e.g., Lo-Ji Sales, Inc. V. New York, 442 U.S. 319, 328 (1979);

Giordenello v. United States, 357 U.S. 480 (1958); Johnson v.

United States, 333 U.S. 10 (1948). Moreover, the State must

show knowing and voluntary guilty pleas where they use the

pleas as an element of a felony indictment, Boykin v. Alabania,

395 U.S. 238, 89 S.Ct. 1709, 23 LEd 2d 274 (1969). This is so

because due process requirements cannot be lacking in any

element of a criminal offense.

2. Whether the utilization of pre-1997 D.U.I. convictions

older than 5 years for felony enhancement under 32-5A-191(h),

represents a deprivation of a defense in violation of

prohibition against passage of ex post facto laws under Federal

and State Constitutional prohibitions?

Land v. Cooper 34 So 2d 313 (Ala 1948)

Tyson v. John Mansfield Sales Corp. 399 So 2d 263, 268,

269 (Ala 1981)

|| Article 95 Alabama Constitution

[1] An ex post facto law imposes a punishment

: for an act which was not Punishable at the time it

was committed or additional punishment to that

previously prescribed, or deprives one of a defense

available under the law at the time when the act

was committed. Weaver v. Graham, 450 U.S. 24, 28,

20

1015S. Ct. 960, 963 67 L.Ed 2nd (1980); Beazell v. Ohio,

269 U.S. 167, 169-170, 46S. Ct. 68, 68-69, 70 L.Ed. 2d

216 (1925).

3. Additionally, counsel I the initial Motion to Dismiss,

argued that 32-5A-191(h) was violative of Ziegler’s constitu-

tional rights, based upon due process notions, as well as based

upon judicial estoppel where the prior statute (pre-1997)

precluded prosecutions that were older than five (5) years.

Counsel argued that this also deprived Ziegler of a defense

and thus represented an ex post facto application of 32-5A-

191(h) in going back over five (5) years.

4. The argument, likewise, involved a statute of

limitations argument based upon the pre-1997 statute

precluding prosecution of offenses older than five (5) years.

32-5A-191(h) attempts to revive actions previously

precluded. Land v. Cooper, 34 So 2d 313 (Ala 1948) while a civil

case addressed legislation that abated and revived actions

previously precluded. The Court there held in Key Notes 4, 5,

and 7 the following:

34 So.2d 313 (Ala. 1948) while a civil case addressed

legislation that abated and revived actions previously

precluded. The Court there held in Key Notes 4, 5 and 7 the

following:

“[4] The legislature may not revive an action which

has abated prior to passage of the statute. Gen. Acts

21

1947, p. 543; U.S.C.A. Const. Amends. 5, 14, §1.

[5] The due process clause prohibits retrospective

legislation which would unfetter title by reviving a

dead right to redeem from mortgage foreclosure. Gen.

Acts 1947, p. 543; U.S.C.A. Const. Amends. 5, 14, §1.

[7] The legislature cannot arbitrarily recreate a

right or liability already extinguished by operation of

law, rights and obligations of parties having become

fixed before the change of the law. Gen. Acts 1947, p.

543; U.S.C.A. Const. Amends. 5, 14, §1.”

5. \The use of a prior conviction older than five (5) years

was prohibited under pre-1997 amendment to 32-5A-191 (and

is still incorporated in (f) of the 1997 amendment). This was

analogous to a statute of limitations or a bar against utilization

of the prior offense to increase punishment for a second or

third conviction (or more) with a five (5) year period.

6. The Alabama Legislature, with the 1997 amendment,

is, therefore, recreating an offense utilizing prior offenses

which, prior to 1997, could not be utilized unless within a five

(5) year period. This, in effect, abates and revives the prior

offenses older than five (5) years for use in enhancement.

7. This is violative of Section 95, Alabama Constitution,

and is violative of due process under the Fifth and Fourteenth

Amendments to the Constitution.

ab.

——

Tyson v. Johns Mansville Sales Corp., 399 So.2d 263, 268,

269 (Ala. 1981) states:

A. Constitutionality under §95 of the Alabama

Constitution.

Section 95 of the Alabama Constitution of 1901

states in pertinent part that ‘the legislature shall have

no power to revive any right or remedy which may

have become barred by lapse of time, or by any statute

of this state. After suit has been commenced on any

cause of action, the legislature shall have no power to

take away such cause of action, or destroy any existing

defense to such suit.’...

[3-6] It is true that the legislature has the inherent

power to determine the period within which an action

may be brought, provided that the time fixed is

reasonable. Sellers v. Edwards, 289 Ala. 2, 265 So.2d 438

(1972); Plant v. Reid, Inc., 294 Ala. 155, 313 So.2d 518

(1975). It also has the power to retroactively alter,

extend, or curtail an existing limitations period.

However, this power ‘can only be exercised so as to

apply . . . where the bar was not complete before the

enactment of the statute, for, if the action was... barred

{before enactment], its effect would be to revive acause

of action already barred and would violate §95....”

Floyd v. Wilson, 171 Ala. 139, 141, 54 So. 528 (1911); see,

Martin v. Martin, 35 Ala. 560 (1860). Such a statute may

be made applicable to ‘an existing cause of action not

3

é

be

“

‘

=

ey

i

+

4

cf

23

then barred, provided it is clear that it was intended to

be retroactive...’ Cronheim v. Loveman, 225 Ala. 199,

201, 142 So. 550 (1932). [Emphasis added.] However,

the Act cannot be permitted to apply retroactively to

claims, such as the ones at hand, which had not been

brought within one year of the date of last exposure

and which, therefore, had been barred under the

statute of limitations in existence at the time the action

was commenced, because such application would

revive a time-barred remedy in contravention of §95.

[8-10] We also hold that, as applied to these time-

barred claims, Act No. 80-566 offends the ‘existing

defense’ provisions of §95. We have held that this

provision applies ‘only to matters of substance and not

to matters of form or to statutes which are remedial in

nature; that “no person has a vested right in a

particular remedy... or in particular modes _ of

procedure’,” State Board of Optometry v. Lee Optical

Company of Alabama, 284 Ala. 562, 565-566, 226 So.2d

623 (1969); and that a statute of limitations is a remedial

statute that does not destroy any vested rights,

Barrington v. Barrington, 200 Ala. 315, 76 So. 81 (1917).

However, we have not heretofore addressed the

question of whether the running of a statute of

limitations creates a vested right in that defense. The

weight of American authority holds that the bar does

create a vested right in the defense.

24

Although there is some authority to the contrary

with regard to actions which do not involve or affect

title to property, the great preponderance of authority

favors the view that one who has become released from

a demand by the operation of the statute of limitation is

protected against its revival by a change in the

limitation law.

According to this view, after a cause of action

has become barred by the statute of limitations the

defendant has a vested right to rely on that statute as

a defense, the defense in such case being considered a

vested right or property which cannot be taken away

by legislation... Especially is such legislation

invalid if the removal of a completed statutory bar ts

prohibited by the state constitution.

51 Am Jur.2d Limitation of Actions, §44 (1970)

(footnotes omitted, emphasis added). See also, Dobson

v. Quinn Freight Lines, 415 A.2d 814 (Me. 1980);

Hockman, ‘The Supreme Court and the Constitution-

ality of Retroactive Legislation,’ 73 Harv.L.Rev. 695,

696 (1960); Smith, ‘Retroactive Laws and Vested

Rights,’ 5 Texas L.Rev. 231, 242-244, 248 (1927).

[11] In the closely related area of ex post facto

legislation, cases and authorities are ‘in agreement that

if the statutory period of the statute has fully run and

the bar has once attached so that the defendant could

Nm

ws

not be prosecuted under the existing statute, the law

cannot be changed by future legislation so as to extend

the period of limitation as to past offenses, already

barred. Such a law would violate the ex post facto

clause.’ Black, ‘Statutes of Limitation and the Ex Post

Facto Clauses,’ 26 Kentucky Law Journal 41, 42 (1937);

Moore v. State, 43 N.J.L. 203 (1881); Falter v. United

States, 23 F.2d 420 (1928).”

+

CONCLUSION

The Petition for a Writ of Certiorari should be granted and

the judgment below reversed. The Petitioner requests that this

Petition be granted, this judgment of conviction reversed and

that this Court enter an Order excluding all evidence seized.

Respectfully submitted,

CRAWFORD ZIEGLER, III

418 Scott Street

Montgomery, Alabama 36104

(334) 263-9810

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App. 1

APPENDIX A

STATE OF ALABAMA - JUDICIAL DEPARTMENT

THE COURT OF CRIMINAL APPEALS

rawford Zi Ill. v.

McMillan, Presiding Judge

\

The appellant appeals from his 1999 conviction of felony

DUI, a violation of § 32-5A-191 (a) and (h), Ala. Code 1975. He

was sentenced to five years’ imprisonment, split to serve

eighteen months’ actual imprisonment, followed by two

years’ supervised probation. Additionally, the trial court

revoked the appellant's driver's license for a period of five

years.

The appellant argues that the trial court lacked jurisdiction

to hear his case because his prosecution was based upon an

insufficient affidavit. Specifically, he argues that the affidavit

of the arresting officer, Trooper Scott Duncan, was insufficient

because he lacked personal knowledge regarding the

appellant’s prior DUI convictions that were the basis of the

charge of felony DUI. In support of his argument, he contends

that the arresting officer must have personal knowledge

regarding the defendant's prior DUI convictions in order to

sign a complaint on felony DUI.

ane

App. 2

The appellant's arguments are without merit because they

are unsupported by any legal authority. Moreover, the record

reveals that there was a sufficient factual basis to support the

issuance of the indictment. Cf. Ex parte Crittenden, 476 So. 2d

632 (Ala. 1985). The factual basis consisted of Trooper

Duncan's complaint based on his April 1999 arrest of the

appellant for DUI, in addition to official police records

regarding the appellant's three prior DUI convictions. No

error occurred here.

II.

The appellant argues that the State is prohibited under the

principle of judicial estoppel from using his pre-1997 DUI

convictions to convict him of felony DUI under § 32-5A-191

(h), Ala. Code 1975. More particularly, he argues that the State,

prior to the 1997 amendment of § 32-5A-191 (h), could not use |

traffic offenses that were more than five years old in convicting

a defendant of DUI. Additionally, he argues that the State's

use of his pre-1997 DUI convictions as applied is violative of

the constitutional prohibition against ex post facto laws, by

elevating his crime of DUI to felony DUI.

Under the 1997 amendment of §32-5A-191(h), Ala. Code

1975, the legislature elected to change the law with respect to

the treatment of prior DUI convictions. In Ex parte Parker, 740

So. 2d 432 (Ala. 1999), and Ex parte Formby, 750 So. 2d 587

(Ala. 1999), the Alabama Supreme Court stated that the

legislative intent in enacting § 32-5A-191 (h) was to create an

enhancement provision aimed at making Alabama's DUI law

App. 3

more enforceable and to identify and keep the drinking driver

off the highway. Subsequently, the State is required to follow

the amended law, and consider all of the defendant's prior

DUI convictions, including those that did not occur within the

five-year period. See also Shaver v. State, [CR-98-1332, Oct. 29

1999] ___ So. 2d ___(Ala. Crim.App. 1999). Moreover, the

appellant, at the time he committed the instant offense, was

charged by law with the knowledge that :f he was convicted of

the offense, having had three prior DUI convictions, the charge

would be elevated to felony DUI. Cf. Chambers v. State, 418

So. 2d 948, 950 (Ala.Crim.App. 1982). (“Consideration of a

defendant's prior convictions in sentencing him pursuant to

the Habitual Offender Act does not give the act efficacy as a

constitutionally prohibited ex post facto law, even though

such prior convictions occurred before the effective date of the

act.”) The State correctly invoked the appellant's prior DUI

convictions, pursuant to § 32-5A-191 (h), in convicting him of

felony DUI.

iil.

The appellant argues that the trial court erred in allowing

the State to use his prior uncounseled municipal court

convictions in enhancing his felony DUI conviction. In

support of his argument, he contends that the waiver of

counsel form that he signed in two of his prior DUI convictions

did not comport with the requirements of Boykin v. Alabama,

395 U.S. 238 (1969), and therefore, the State failed to show that

his waiver of counsel was voluntary.

App. 4

An examination of the record reveals that the trial court

correctly allowed the State to introduce the appellant's prior

convictions for purposes of enhancement under § 32-5A-191

(h), because the record affirmatively demonstrated that the

appellant voluntarily waived counsel on the two prior

convictions. Cf. Ex parte Thrasher, [Ms. 1990568, August 11,

2000] ____ So.2d ___ (Alla. 2000) (The State is not required to

prove that the defendant waived counsel in a municipal court

conviction for DUI if a jail term was not imposed.) Moreover,

if the appellant seeks to challenge his prior convictions based

upon the voluntariness of his guilty pleas, the proper vehicle

would be a Rule 32 petition for post-conviction relief, filed in

the court of conviction for the conviction being challenged.

Sturdivant v. State, 643 So. 2d 1013 (Ala.Crim.App. 1993); Rule

32, Ala.R.Crim.P.

IV.

The appellant argues that he was improperly convicted of

felony DUI because the State failed to prove that two of his

three prior DUI convictions occurred within five years, are

required by § 32-5A-191 (f), Ala. Code 1975. He argues that a

reading of §§ 32-5A-191 (g), and (h), when construed in para

materia, with § 32-5A-191 (f), indicates that it was the

legislature’s intent that two of his prior DUI convictions must

have occurred within five years, in order for his sentence to be

enhanced under subsections (g) and (h) of the Act.

App. 5

Section 32-5A-191(f), (g), and (h), Ala. Code 1975 provides

in pertinent part as follows:

(f) Onasecond conviction within a five-year period, a

person convicted of violating this section shall be punished

by a fine of not less than one thousand one hundred dollars

($1,100) nor more than five thousand one hundred dollars

($5,100) and by imprisonment, which may include hard

labor in the county or municipal jail for not more than one

year. The sentence shall include a mandatory sentence,

which is not subject to suspension or probation, of

_imprisonment in the county or municipal jail for not less

than 48 consecutive hours or community service for not

less than 20 days. In addition the Director of Public Safety

shall revoke the driv ing privileges or driver's license of the

person convicted for a period of one year.

(g) On a _third conviction, a person convicted of

violating this section shall be punished by a fine of not less

than two thousand one hundred dollars ($2,100) nor more

than ten thousand one hundred dollars ($10,100) and by

imprisonment, which may include hard labor, in the

county or municipal jail for not less than 60 days or than

one year, to include a minimum of 60 days which shall be

served in the county or municipal jail and cannot be

probated or suspended. In addition, the Director of Public

Safety shall revoke the driving privilege of driver's license

of the person convicted for a period of three years.

App. 6

(h) On a fourth or subsequent conviction, a person

convicted of violating this section shall be guilty of a Class

C felony and punished by a fine of not less than four

thousand one hundred dollars ($4,100) nor more than ten

thousand one hundred dollars ($10,100) and by

imprisonment of not less than one year and one day nor

more than 10 years. Any term of imprisonment may

include hard labor for the county or state, and where

imprisonment does not exceed three years confinement

may be in the county jail. Where imprisonment does not

exceed one year and one day, confinement shall be in the

county jail. The minimum sentence shall include a term of

imprisonment for at least one year and one day provided,

however, that there shall be a minimum mandatory

sentence of 10 days which shall be served in the county jail.

The remainder of the sentence may be suspended or

probated, but only if as a condition of probation the

defendant enrolls and successfully completes a state

certified chemical dependency program recommended by

the court referral officer and approved by the sentencing

court. Where probation is granted, the sentencing court

may, in its discretion, and where monitoring equipment is

available, place the defendant on house arrest under

electronic surveillance during the probation term. In

addition to the other pena'ties authorized, the Director of

Public Safety shall revoke the driving privilege or driver’s

license of the person convicted for a period of five

years...”

App. 7

“The fundamental rule of statutory construction is

to ascertain and give effect to the intent of the

legislature. When interpreting a statute, we must

consider it as a whole and must construe it

reasonably so as to harmonize all of its provisions.”

James v. McKinney, 729 So. 2d 264, 267 (Ala. 1998)

(citations omitted.) Just as statutes dealing with the

same subject are in pari materia and should be

construed together, parts of the same statute are in

pari materia and each part is entitled to equal

weight. See Lambert v. Wilcox County Commis-

sion, 623 So. 2d 727 (Ala. 1993). Additionally, when

the statutory pronouncement is clear and not

susceptible to a different interpretation, it is the

paramount judicial duty of a court to abide by the

clear pronouncement.

Ex parte Burch, 730 So.2d 143 (Ala. 1999).

Here, a clear reading of the language used in § 32-5A-

191, giving equal weight to each of its sections, indicates

that the Legislature, in adopting the 1997 amendments to

the statute, intended to remove the five-year limitations

period from subsections (g) and (h) in an attempt to impose

a harsher penalty upon the habitual drunk driver.

The record indicates that the State sufficiently proved that

the appellant had three prior DUI convictions which could

be used as a sentence enhancement to invoke felony

punishment on his fourth conviction and, therefore, it me

its burden of proof for sentence enhancement purposes.

App. 8

V.

The appellant argues that the indictment in this case was

illegal and voidable because it improperly charged him with

both a misdemeanor and a felony.

The indictment reads as follows:

“Crawford Ziegler, III, alias, Crawford Ziegler,

whose name is otherwise unknown to the Grand

Jury, did drive or was in actual physical control of

a vehicle while there was .08 percent or more by

weight of alcohol in his blood, or while he was

under the influence of alcohol, or while he was

under the influence of a controlled substance to a

degree which rendered him incapable of safely

driving, or while he was under the combined

influence of alcohol and a controlled substance to a

degree which rendered him incapable of safely

driving, or while he was under the influence of any

substance which impaired his mental or physical

faculties to a degree which rendered him incapable

of safely driving in violation of Sections 32-5A-191

(a) and 32-5A-191 (h) of the Code of Alabama as

amended.”

The indictment did not charge the appellant with both a

misdemeanor and a felony, but rather, put him on notice that,

if convicted of a fourth DUI, h is sentence would be elevated to

App. 9

a felony as opposed to a misdemeanor. See Ex parte Shaver,

supra; Casey v. State, 740 So. 2d 1136 (Ala.Crim.App. 1998).

The judgment of the trial court is affirmed.

AFFIRMED.

Cobb, Shaw and Wise, JJ., concur. Baschab, J., concurs in the

result.

App. 10

APPENDIX B

COURT OF CRIMINAL APPEALS _

CR-99-1006

Hon. Melissa Rittenour, Circuit Clerk RE: CR-99-1006

Hon. Jean Therkelsen, Asst. Atty. Gen. Crawford Ziegler, III v. State of

Hon. Donald Gordon Madison, Atty. Alabama (Appeal From

Montgomery Circuit Court:

CC-99-1755).

Dear Sir or Madam:

You are hereby notified that on March 16th, 2001 the

following action was taken in the above referenced cause by

the Court of Criminal Appeals:

Application for rehearing overruled.

Lane W. Mann

Clerk

Court of Criminal Appeals

LWN/Ik

App. 11

APPENDIX C

IN THE SUPREME COURT OF ALABAMA

May 25, 2001

1001136

Ex parte Crawford Ziegler, III. PETITION FOR WRIT OF

CERTIORARI TO THE COURT OF CRIMINAL APPEALS

(In re: Crawford Ziegler, II] v. State of Alabama)

(Montgomery Cir.Ct.No.: CC-99-1755) (Low’r.App.Ct.No:

CR-99-1006)

CERTIFICATE OF JUDGMENT

Writ Denied

The above cause having been duly submitted, IT IS

CONSIDERED AND ORDERED that the petition for writ of

certiorari is denied for lack of compliance with Rule 39,

Alabama Rules of Appellate Procedure. NO OPINION.

COSTS TAXED TO PETITIONER.

STUART, J.- Moore, C.J.,and See, Brown and Harwood, JJ.,

concur.

App. 12

I, Robert G. Esdale, Sr., as

Clerk of the Supreme Court of

Alabama, do hereby certify

that the foregoing is a full, true

and correct copy of the

instrument(s) herewith set out

as same appear(s) of record in

said Court.

Witness my hand this 25th day

of May, 2001.

s/

_ ROBERT G. ESDALE, SR.

Clerk, Supreme Court of

Alabama

App. 13

APPENDIX D

CODE OF ALABAMA 1975, as amended

§ 32-5A-191. Driving under the influence.

(a) A person shall not drive or be in actual physical ~

control of any vehicle while:

(1) There is 0.08 percent or more by weight of

alcohol in his or her blood;

(2) Under the influence of alcohol;

(3) Under the influence of a controlled substance

to a degree which renders him or her incapable

of safely driving;

(4) Under the combined influence of alcohol and a

controlled substance to a degree which renders

him or her incapable of safely driving; or

(5) Under the influence of any substance which

impairs the mental or physical faculties of such

person to a degree which renders him or her

incapable of safely driving. .....-..-.

(f) On a second conviction within a five-year period, a

person convicted of violating this section shall be punished by

a fine of not less than one thousand one hundred dollars

($1,100) nor more than five thousand one hundred dollars

($5,100) and by imprisonment, which may include hard labor

in the county or municipal jail for not more than one year. The

App. 14

sentence shall include a mandatory sentence, which is not

subject to suspension or probation, of imprisonment in the

county or municipal jail for not less than 48 consecutive hours

or community service for not less than 20 days. In addition the

Director of Public Safety shall revoke the driving privileges or

driver's license of the person convicted for a period of one

year.

(g) On a third conviction, a person convicted of violating

this section shall be punished by a fine of not less than two

thousand one hundred dollars ($2,100) nor more than ten

thousand one hundred dollars ($10,100) and by imprisonment,

which may include hard labor, in the county or municipal jail

for not less than 60 days nor more than one year, to include a

minimum of 60 which shall be served in the county or

municipal jail and cannot be probated or suspended. In

addition, the Director of Public Safety shall revoke the driving

privilege or driver's license of the person convicted for a

period of three years.

(h) On a fourth or subsequent conviction, a person

convicted of violating this section shall be guilty of a Class C

felony and punished by a fine of not less than four thousand

one hundred dollars ($4,100) nor more than ten thousand one

hundred dollars ($10,100) and by imprisonment of not less

than one year and one day nor more than 10 years. Any term

of imprisonment may include hard labor for the county or

state, and where imprisonment does not exceed three years

confinement may be in the county jail. Where imprisonment

does not exceed one year and one day, confinement shall be in

the county jail. The minimum sentence shall include a term of

App. 15

imprisonment for at least one year and one day which may be

suspended or probated, but only if the defendant enrolls and

successfully completes a state certified chemical dependency

program recommended by the court referral officer and

approved by the sentencing court. Where probation is

granted, the sentencing court may, in its discretion, and where

monitoring equipment is available, place the defendant on

house arrest under electronic surveillance during the

probationary term. In addition to the other penalties

authorized, the Director of Public Safety shall revoke thy

driving privilege or driver’s license of the person convicted for

a period of five years.

Any law to the contrary notwithstanding, the Alabama

habitual felony offender law shall not apply to a conviction of

a felony pursuant to this subsection shall not be a felony

conviction for purposes of the enhancement of punishment

_ pursuant to Alabama’s habitual felony offender law.