
    Dona Harvey SLY v. STATE.
    7 Div. 651.
    Court of Criminal Appeals of Alabama.
    May 1, 1979.
    Myron K. Allenstein, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

This prosecution originated in the District Court wherefrom, on a judgment of guilt, defendant appealed to the Circuit Court where a jury again convicted him. The trial Judge (not the jury) imposed a fine of $100.00. No jail sentence was imposed as authorized.

Defendant was charged in the Circuit Court with willfully failing or refusing to comply with a lawful order or direction of an officer invested by law with authority to direct or regulate traffic. Section 32-5-15, Code of Alabama 1975. Punishment for such violation is a fine of not more than $100.00 for a first offense. Section 32-5— 311, Code of Alabama 1975.

The trial court imposed the fine contrary to the provisions of Section 15-18-40, Code of Alabama 1975, which reads:

“In prosecution by indictment, the jury shall fix and determine the amount of the fine, and no judge shall remit or reduce the fine so fixed unless he spreads his reasons for so doing in full on the minutes of the court.”

This section applies to an indictable offense as here charged, Section 15-8-2, Code of Alabama 1975. In Melton v. State, 45 Ala. 56, Justice Saffold, speaking for the Supreme Court, observed:

“. . . Although this case came into the circuit court by appeal, and was tried on a complaint, yet it is an indictable offense, and in that court must be deemed a prosecution by indictment.”

The Supreme Court refers to Section 3757 of Revised Code, 1867, which is now Section 15-18-40, Code of Alabama 1975, supra. See also Loggins v. State, 52 Ala.App. 204, 290 So.2d 665(2).

The defendant was denied the right to have the jury fix the amount of the fine. The trial court instructed the jury that the court and not the jury had the right “to impose a fine or whatever is provided by statute”. The trial Judge was not authorized to assess the fine.

We pretermit considering other contentions of error.

The judgment is reversed and the cause is remanded for retrial or other disposition that is authorized by law.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

REVERSED AND REMANDED.

All the Judges concur.  