Williams v. State

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and COBB and WISE, JJ., concur.

BASCHAB, J., concurs in part and dissents in part, with opinion. *Page 343

I concur to affirm the appellant's conviction. However, because the trial court imposed an excessive Demand Reduction Assessment Act fine, see § 13A-12-281, Ala. Code 1975, I must respectfully dissent in part.

In this case, the trial court imposed a $2,000 Demand Reduction Assessment Act fine. Section § 13A-12-281(a), Ala. Code 1975, provides:

"In addition to any disposition and fine authorized by Sections 13A-12-202, 13A-12-203, 13A-12-204, 13A-12-211, 13A-12-212, 13A-12-213, 13A-12-215, or 13A-12-231, or any other statute indicating the dispositions that can be ordered for such a conviction or an adjudication of delinquency, every person convicted of, or adjudicated delinquent for, a violation of any offense defined in the sections set forth above, shall be assessed for each such offense an additional penalty fixed at $1,000 for first offenders and $2,000 for second and subsequent offenders."

(Emphasis added.) The record shows that the appellant had a previous drug conviction in the State of Georgia. However, the plain language of § 13A-12-281(a), Ala. Code 1975, indicates that the $2,000 penalty applies only if the previous conviction or convictions were for violations of the sections specifically enumerated in that statute. Compare Ex parte Bertram,884 So.2d 889 (Ala. 2003) (holding that, based on the plain language of § 32-5A-191, Ala. Code 1975, a prior out-of-state conviction for driving under the influence cannot be used to enhance a defendant's sentence conviction for driving under the influence pursuant to § 32-5A-191, Ala. Code 1975). Because the appellant's prior Georgia conviction was not a conviction for violating any of the sections set forth in §13A-12-281(a), Ala. Code 1975, it would not constitute a prior offense for the purposes of § 13A-12-281(a), Ala. Code 1975. Therefore, the $2,000 fine the trial court imposed exceeds the $1,000 fine mandated by § 13A-12-281, Ala. Code 1975, for first offenders. Accordingly, this court should remand this case to the trial court for that court to set aside the $2,000 Demand Reduction Assessment Act fine and impose a $1,000 Demand Reduction Assessment Act fine, as required by §13A-12-281(a), Ala. Code 1975.