
    Kenneth Earl DAVIS v. STATE.
    CR-99-2431.
    Court of Criminal Appeals of Alabama.
    May 25, 2001.
    Richard D. Jensen, Foley, for appellant.
    Bül Pryor, atty. gen., and Jean A. Ther-kelsen, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

This case is on appeal following a finding of guilt, and an order issued by the Baldwin District Court denying Kenneth Earl Davis’s motion to dismiss his case for lack of jurisdiction and certifying a question of law for consideration by this court. See Rule 30.2(2), Ala.R.Crim.P.

The pertinent facts are as follows: On January 29, 2000, the appellant, Kenneth Earl Davis, was issued a traffic ticket charging him with driving under the influence of alcohol, a violation of § 32-5A-191(a)(2), Ala.Code 1975. On February 29, 2000, the case was sent to the Baldwin County grand jury; the grand jury returned an indictment charging the appellant with felony DUI, misdemeanor DUI, and driving while his license was revoked. On May 24, 2000, Davis entered a plea of not guilty and a waiver of arraignment. On July 5, 2000, the State filed a motion to remand the case to the district court on grounds that, although “it has been determined that while the defendant may have three prior DUI convictions, they are not documented in such a manner that said conviction would be admissible in Circuit Court.” On July 6, 2000, the circuit court, pursuant to the State’s motion to remand, transferred the case to the district court, after dismissing the felony count. On August 22, 2000, the appellant’s trial counsel filed a motion in the district court to dismiss, stating as grounds that, because the appellant was indicted by the Baldwin County grand jury, jurisdiction was with the circuit court, not with the district court. The district court denied the motion to dismiss. The appellant stipulated to a prima facie case, and the district court found the appellant guilty and certified the following question of law as the sole issue on appeal:

“When a DUI case and its companion cases(s) (if any) are sent to the Grand Jury for consideration, and that Grand Jury returns an indictment for one count of Felony DUI and one count of Misdemeanor DUI, and in a Circuit Court proceeding it is determined that the State cannot prove three proper prior convictions for enhancement purposes, and if the Circuit Court then enters an Order remanding the case for prosecution in the District Court, does the District Court have jurisdiction to hear the case or does jurisdiction remain in the Circuit Court for prosecution of the misdemeanor eount(s)?
“This Court further notes that the attorneys for the parties (D. Robert Stanfoski for the State and Gregory B. Dawkins for the Defendant) have orally stipulated before this Court that only questions of law are involved.”

Pursuant to Rule 30.2, Ala.R.Crim.P., this question is properly before this court.

In Ex parte Formby, 750 So.2d 587, 590 (Ala.1999), the Alabama Supreme Court held that prosecutions for felony DUI offenses are to be initiated in the circuit court, stating that “the Legislature’s enactment of § 32-5A-191(h) made jurisdiction over a fourth or subsequent DUI charge appropriate in the circuit court, because the offense charged ... is a felony.” As the Supreme Court noted in Ex parte Forrnby, the indictment, in and of itself, acts as notice to the defendant that the State is invoking the circuit court’s jurisdiction to impose, upon conviction for a violation of § 32-5A-191(a), the felony punishment mandated by § 32-5A-191(h). In Casey v. State, 740 So.2d 1136 (Ala. Crim.App.1998), this Court addressed the defendant’s argument that the circuit court did not have subject-matter jurisdiction to hear his case because, immediately before trial, the indictment charging him with felony DUI had been nol-prossed. The defendant argued that, although all of the charges against him had been returned by indictment, because the remaining charges were misdemeanors, jurisdiction over his case rested exclusively with the Foley Municipal Court. This Court in Casey held that the dismissal of a felony-DUI charge against a defendant did not strip the circuit court of jurisdiction over the remaining misdemeanor charges, and, therefore, that in the interest of judicial economy, that court could accept the defendant’s guilty pleas to the misdemeanor offenses that had resulted from the same incident as the felony DUI with which he had been originally charged. See § 12-11-30, Ala. Code 1975:

“The circuit court shall have exclusive original jurisdiction of all felony prosecutions and of misdemeanor or ordinance violations which are lesser included offenses within a felony charge or which arise from the same incident as a felony charge....”

See McDuffie v. State, 712 So.2d 1118 (Ala.Crim.App.1997); Ross v. State, 529 So.2d 1074, 1078 (Ala.Crim.App.1988) (“the [subject-matter] jurisdiction of the court, in felony cases, rests upon utilization of a grand jury indictment or information”); Coral v. State, 551 So.2d 1181 (Ala.Crim. App.1989) (circuit court acquires personal jurisdiction by indictment.) See also Rule 2.2(a), Ala.R.Crim.P. (“All felony charges and misdemeanor or ordinance violations which are lesser included offenses within a felony charge or which arise from the same incident as a felony charge shall be prosecuted in circuit court, except that the district court shall have concurrent jurisdiction to receive guilty pleas and to impose sentences in felony cases not punishable by sentence of death, including related and lesser included misdemeanor charges, and may hold preliminary hearings with respect to felony charges.”).

Additionally, in State v. Shaver, [Ms. CR-98-1332, October 29, 1999], — So.2d -- (Ala.Crim.App.1999), this Court provided a brief history of the procedures used in the municipal, district, and circuit courts for a defendant who has committed a fourth or subsequent DUI offense:

“When a law enforcement officer issues a ticket for a DUI offense, the person is charged with the misdemeanor violation of DUI. See § 32-5A-191(a). Typically, between the time the ticket is issued and comes to trial in the municipal or district court (see § 12-12-51, establishing the jurisdiction of the municipal or district court for misdemeanor prosecutions for traffic offenses), the state, county, or municipal officer runs a driving history on the person to determine if the person has previously been conviction of DUI. If the charged offense is not the person’s fourth or subsequent DUI offense, the municipal or district court allows the person either to waive an attorney and trial and to plead guilty to the offense, or to request an attorney, in which event the case is set for trial. If the present DUI charge may result in a fourth or subsequent DUI conviction, then the municipal or district court typically transfers the case to the district attorney’s office for presentation to a grand jury. The return of an indictment invokes the jurisdiction of the circuit court so that the felony punishment mandated in § 32-5A-191(h) could be imposed; disposition of the case occurs, in circuit court. If the circuit court concludes before trial that the defendant does not have three or more prior DUI convictions that could be used as enhancement to invoke the felony punishment, circuit courts dispose of the indictment in different ways. If the defendant is willing to plead guilty, some circuit courts in the interest of judicial economy accept a misdemeanor plea and impose the appropriate sentence. See Casey v. State, 740 So.2d 1136 (Ala. Crim.App.1998). See also § 32-5A-191(e), (f), and (g), Ala.Code 1975. Other circuit courts dismiss the indictment, on the basis that it was fatally defective. Still others transfer the case to the lower court for disposition. If the circuit court determines that the defendant has three or more prior DUI convictions that could be used as enhancement to invoke the felony punishment, the circuit court either allows the defendant to plead guilty to the charged DUI and imposes the felony punishment or, if the defendant desires a trial, the circuit court, sitting either with or without a jury, conducts a trial. If the defendant is convicted, the circuit court imposes the felony punishment.”

Id. (Footnotes omitted.) (Second emphasis added.)

We answer the certified question as follows. When the grand jury returns an indictment against a defendant charging him with felony DUI and with misdemeanors, the jurisdiction of the circuit court is invoked. A subsequent dismissal of the felony DUI charge does not divest the circuit court of its jurisdiction over the misdemeanor charges, i.e., if a defendant is willing, the court may accept his guilty pleas and impose an appropriate sentence. The circuit court may also dismiss the indictment, on the basis that it is fatally defective. Lastly, the circuit court may transfer the case to the district court for disposition of any remaining misdemeanor charges.

In light of the record in this case, including the State’s motion to remand, and our dicta in Shaver, supra, the circuit court did not err in transferring the case to the district court for disposition.

AFFIRMED.

COBB and WISE, JJ., concur. BASCHAB, J., concurs in the result. SHAW, J., concurs in the result, with opinion.

SHAW, Judge,

concurring in the result.

Pursuant to § 12-12-72, Ala.Code 1975, the district court certified the following question to this court:

“When a DUI case and its companion case(s) (if any) are sent to the Grand Jury for consideration, and that Grand Jury returns an indictment for one count of Felony DUI and one count of Misdemeanor DUI, and in a Circuit Court proceeding it is determined that the State cannot prove three proper prior convictions for enhancement purposes, and if the Circuit Court then enters an Order remanding the case for prosecution in the District Court, does the District Court have jurisdiction to hear the case or does jurisdiction remain in the Circuit Court for prosecution of the misdemeanor count(s)?

I would answer this question as follows: The district court has concurrent jurisdiction with the circuit court to receive a guilty plea with respect to the related misdemeanor charge. However, the district court does not have jurisdiction to try the remaining misdemeanor charge; jurisdiction remains in the circuit court for prosecution of that charge.

The statutes and accompanying caselaw pertaining to this jurisdictional issue have been the subject of much debate among lawyers and judges alike. Judge Cobb, writing for this court in Casey v. State, 740 So.2d 1136, 1138-39 (Ala.Crim.App.1998), concisely discussed the interaction of the applicable statutes and caselaw:

“Casey argues that the circuit court did not have subject matter jurisdiction to hear his case. Immediately before trial, the indictment charging Casey with felony DUI was nol-prossed. Casey asserts that because the remaining charges against him were misdemeanors, jurisdiction over his case rested exclusively with the Foley Municipal Court.
“The remaining charges against Casey of misdemeanor DUI, reckless driving, and driving with his license revoked were returned by indictment. Section 12-12-32, Ala.Code 1975 provides:
“ ‘The district court shall have exclusive original trial jurisdiction over prosecutions of all offenses defined by law or ordinance as misdemeanors, except:
“ ‘(3) Any misdemeanor for which an indictment has been returned by a grand jury.’
However, § 12-12-51, Ala.Code 1975, states that ‘[t]he district court shall have exclusive original jurisdiction of misdemeanor prosecutions for traffic infractions, except ordinance infractions prosecuted in municipal courts.’ Driving under the influence is a traffic offense. Wright v. State, 494 So.2d 177 (Ala.Cr.App.1986).
“The conflict between § 12-12-32 and § 12-12-51 was resolved in Wright v. State, 494 So.2d 177 (Ala.Cr.App.1986). In Wright this Court held:
“ ‘[T]he district court has exclusive jurisdiction of misdemeanor prosecutions for traffic infractions even where an indictment has been returned (except ordinance infractions prosecuted in municipal courts). For any misdemeanor prosecution by indictment, other than a traffic infraction, the district court has jurisdiction but does not have exclusive original jurisdiction.’
494 So.2d at 179. See also Eskridge v. State, 709 So.2d 1348 (Ala.Cr.App.1997). Thus, in the case of misdemeanor traffic infractions, including DUI, charged by indictment, the district court has exclusive original jurisdiction.
“However, in the present case, Casey was not indicted only for misdemeanor traffic offenses. Casey was also indicted for a felony offense, which is within the jurisdiction of the circuit court. Casey’s argument that the circuit court did not have jurisdiction ignores this fact. The misdemeanor offenses against Casey arose from the same incident as the felony DUI with which Casey was originally charged. Under § 12-11-30, Ala. Code 1975:
“ ‘The circuit court shall have exclusive original jurisdiction of all felony prosecutions and of misdemeanor or ordinance violations which are lesser included offenses within a felony charge or which arise from the same incident as a felony charge.... ’
“For example, in Crear v. State, 591 So.2d 530 (Ala.Cr.App.1991), the defendant was indicted for felony possession of marijuana. However, when the State failed to prove a prior conviction, the circuit court granted the defendant’s motion for a judgment of acquittal on felony possession and instructed the jury only on misdemeanor marijuana possession. On appeal, this Court held that the circuit court did not lose jurisdiction when it dismissed the felony charge. Crear v. State, 591 So.2d at 532. See also Ross v. State, 529 So.2d 1074, 1078 (Ala.Cr.App.1988) (‘the [subject matter] jurisdiction of the court, in felony cases, rests upon utilization of a grand jury indictment or information’); Coral v. State, 551 So.2d 1181 (Ala.Cr.App.1989) (circuit court acquires personal jurisdiction by indictment).
“A similar case is presented here. A grand jury returned an indictment against Casey charging a felony DUI, thereby invoking the jurisdiction of the circuit court. The dismissal of the felony DUI against Casey before trial did not strip the circuit court of jurisdiction over the remaining misdemeanor charges. The circuit court had jurisdiction over the charges of DUI, reckless driving, and driving while his license was revoked.”

As this court pointed out in Casey, the district court has exclusive original jurisdiction of misdemeanor prosecutions for traffic infractions (except ordinance infractions prosecuted in municipal court), even in cases in which an indictment has been returned. For any misdemeanor prosecution by indictment, other than a traffic infraction, the district court has jurisdiction but does not have exclusive original jurisdiction. See Wright v. State, 494 So.2d 177 (Ala.Crim.App.1986), superseded in part by statute, as recognized in McDuffie v. State, 712 So.2d 1118 (Ala.Crim.App.1997). However, as this court also noted in Casey, once the jurisdiction of the circuit court has been invoked by an indictment charging a felony DUI offense, see Ex parte Formby, 750 So.2d 587 (Ala. 1999), the controlling statute is § 12 — 11— 30(2), Ala.Code 1975, which provides:

“The circuit court shall have exclusive original jurisdiction of all felony prosecutions and of misdemeanor or ordinance violations which are lesser included offenses within a felony charge or which arise from the same incident as a felony charge.... ”

(Emphasis added.) “Original jurisdiction” is defined in Black’s Law Dictionary (7th ed.1999), as follows:

“A court’s power to hear and decide a matter before any other court can review the matter.”
“Exclusive jurisdiction” is defined in Black’s as follows:
“A court’s power to adjudicate an action or claim of actions to the exclusion of all other courts.”

(Emphasis added.)

Under the plain language of § 12-11-30(2), as recognized in Casey, the circuit court has exclusive original jurisdiction over any misdemeanor charge that is a lesser included offense within a felony charge or that arises from the same incident as a felony charge. A fourth DUI offense, in the absence of proof of three previous DUI offenses, necessarily arises from the same incident as, and constitutes a lesser included offense of, the nol-prossed or dismissed felony DUI charge. Rule 2.2, Ala.R.Crim.P., appears to be consistent with this interpretation of the applicable statutes. Rule 2.2 provides, in pertinent part:

“(a) Felonies. All felony charges and misdemeanor or ordinance violations which are lesser included offenses within a felony charge or which arise from the same incident as a felony charge shall be prosecuted in circuit court, except that the district court shall have concurrent jurisdiction to receive guilty pleas and to impose sentences in felony cases not punishable by sentence of death, including related and lesser included misdemeanor charges, and may hold preliminary hearings with respect to felony charges.
“(b) Misdemeanors and Ordinance Violations. All misdemeanor offenses (including an indictment charging a traffic infraction) shall be prosecuted originally in district court or, where adopted as municipal ordinance violations, municipal court, except:
“(1) Misdemeanors for which an indictment has been returned by a grand jury-
“(2) Misdemeanors that are lesser included offenses within a felony charge as to which concurrent jurisdiction as described in Rule 2.2(a) has not been exercised.
“(c) Transfer of Cases. Cases filed in a court that does not have original trial jurisdiction of the offense charged shall be transferred to the appropriate court as provided in Ala.Code 1975, § 12 — 11— 9.”

See also Dutton v. State, 807 So.2d 596 (Ala.Crim.App.2001); McDuffie v. State, supra; Blevins v. State, 747 So.2d 914 (Ala.Crim.App.1998), overruled in part, Ex parte Parker, 740 So.2d 432 (Ala.1999).

I note that Rule 2.2(a) specifically states that the district court’s jurisdiction extends to accepting guilty pleas and imposing sentences with regard to lesser included and related misdemeanor charges. However, § 12 — 12—32(b)(1), Ala.Code 1975, provides that “[t]he district court may exercise original jurisdiction concurrent with the circuit court to receive pleas of guilty in prosecutions of offenses defined by law as felonies not punishable by sentence of death.” (Emphasis added.) See also § 12-11-30(2). Rule 2.2(a) specifically states that “the district court shall have concurrent jurisdiction to receive guilty pleas and to impose sentences in felony cases not punishable by sentence of death, including related and lesser included misdemeanor charges.... ” (Emphasis added.) I must assume that the Supreme Court concluded that Rule 2.2(a), insofar as it deals with a district court’s jurisdiction to accept guilty pleas with respect to “related and lesser included misdemeanor charges,” was promulgated in accordance with that Court’s rule-making authority. See § 6.11, Amendment 328, Ala. Const of 1901. I make this observation because under the plain language of Rule 2.2(a), the district court in this case had jurisdiction to accept a guilty plea and to impose sentence on the related misdemeanor charge.

Furthermore, State v. Thrasher 783 So.2d 100 (Ala.Crim.App.1999), aff'd in part, rev’d on other grounds, 783 So.2d 103 (Ala.2000), which is not mentioned in the court’s opinion, is directly contrary to the court’s holding today. The court in Thrasher, relying on Ex parte Formby, supra, held that the circuit court had erred in transferring Thrasher’s case to the municipal court after the circuit court had found “that the two prior uncounseled convictions [could not] be used by the State to enhance the possible sentence in [the] felony DUI.” Although I do not find Ex parte Formby to be conclusive with respect to the issue presently before this court, as the State suggests, the court’s decision in Thrasher should be considered overruled by implication by the court’s holding today.

Moreover, my views in this respect are entirely consistent with most of what this court said in State v. Shaver, [Ms. CR-98-1332, October 29, 1999] — So.2d - (Ala.Crim.App.1999), on which the court bases its opinion. The Shaver court did suggest that it might be appropriate for the circuit court to transfer a case to the district court for trial of lesser included or related misdemeanor charges. See — So.2d at-n. 5, citing Wright v. State, supra. However, I believe the court may-have made this suggestion unwittingly— the opinion in Shaver was released on the same day as the opinion in Thrasher, in which the court held that the circuit court, having initially assumed jurisdiction of the felony DUI charge, had to dispose of the related misdemeanor charges. After carefully reviewing the Shaver opinion, I think the court primarily intended to provide only a brief history of the procedures that were being used in the municipal, district, and circuit courts as .an aside to the reader in understanding the issue that was actually before the court — whether the circuit court had jurisdiction over the felony DUI charge. I do not believe the court necessarily intended to sanction all of those varied procedures. Unfortunately, the Shaver dicta forms the foundation here for the court’s answer to the question certified for review by the district court.

For the foregoing reasons, I would hold that a district court has jurisdiction to receive guilty pleas on lesser included misdemeanor charges and misdemeanor charges that relate to the felony charge and to impose sentence. If Davis had wished to go to trial on the misdemeanor charge, the case should have been transferred back to the circuit court. However, Davis entered a guilty plea in the district court and, as I noted above, the district court did, in my view, have concurrent jurisdiction with the circuit court to receive a guilty plea on the remaining misdemeanor charge and to sentence accordingly. For the foregoing reasons, I agree that the district court’s order denying Davis’s motion to dismiss is due to be affirmed. Therefore, I concur in the result. 
      
      . I note that this court, in Ex parte City of Tuscaloosa, 636 So.2d 692 (Ala.Crim.App. 1993), held that the "same incident” language of § 12-11-30(2) should be construed to mean the "same act.” To my knowledge, the Supreme Court has not approved this construction. See Ex parte Russell, 643 So.2d 963 (Ala. 1994). In any event, it would appear that a fourth DUI offense, in the absence of proof of three previous DUI offenses, necessarily arises from the same act that gave rise to the felony DUI charge.
     
      
      . The present jurisdictional issue was not squarely before the Supreme Court in Ex parte Formby. Therefore, we should exercise caution lest we read too much into that Court’s singular statement: "Prosecutions for felony DUI offenses should have been, and should continue to be, in the circuit court.” 750 So.2d at 591.
     