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03/03/95 STATE v. TONI DARLENE KIMPEL

March 3, 1995

STATE
v.
TONI DARLENE KIMPEL



Appeal from Mobile Circuit Court. (CC-92-3974 through -3978). Robert Key, TRIAL JUDGE.

As Substituted. Rule 39(k) Motion Denied April 14, 1995. Rehearing Denied April 14, 1995. Certiorari Denied June 30, 1995.

Patterson, Judge. Taylor, P.j., McMILLAN, Cobb, JJ., Concur; Long, J., Recuses Himself.

The opinion of the court was delivered by: Patterson

PATTERSON, JUDGE

Toni Darlene Kimpel was charged, in five separate indictments, with practicing nurse midwifery without a license. This offense is a misdemeanor under § 34-19-3, Code of Alabama 1975. The trial court, holding that § 34-19-3 is "vague and ambiguous," *fn1 dismissed the indictments in a pretrial order. The state appeals the trial court's ruling.

I.

Kimpel argues that this court is without jurisdiction to hear this appeal. She relies on Rule 15.7(a), Ala.R.Crim.P.:

"an appeal may be taken by the state in a felony case to the Court of Criminal Appeals from a pre-trial order of the circuit court (1) suppressing a confession or admission or other evidence, (2) dismissing an indictment, information, or complaint (or any part of an indictment, information, or complaint), (3) quashing an arrest or search warrant. Such an appeal may be taken only if the district attorney certifies to the Court of Criminal Appeals that the appeal is not brought for the purpose of delay and that the order, if not reversed on appeal, will be fatal to the prosecution of the charge."

(Emphasis added.) Kimpel notes that this court has interpreted Rule 15.7 to be the exclusive avenue for a pretrial appeal by the state in a criminal case and to be inapplicable to misdemeanors. In City of Attalla v. Smith, 596 So. 2d 651, 651 (Ala.Cr.App.1992), this court held, "rule 15.7 allows pretrial appeals by the State only in felony cases. There is no provision for a pretrial appeal by the state in a misdemeanor case." We find, however, that the rationale of City of Attalla v. Smith is incorrect, because it flies in the face of the state's statutory right to appeal judgments holding statutes unconstitutional.

Section 12-22-91, provides another means by which the state may appeal a trial court's judgment:

"In all criminal cases when the act of the legislature under which the indictment or information is preferred is held to be unconstitutional, the district attorney may take an appeal in behalf of the state to the supreme court, which appeal shall be certified as other appeals in criminal cases, and the clerk must transmit, without delay, the record on appeal and the notice of appeal to the supreme court."

(Emphasis added.) This provision originally appeared as § 4515, Code of Alabama of 1886. At that time, the Supreme Court was the only appellate court in Alabama. Therefore, the term "supreme court" was not intended to deny jurisdiction to the Court of Criminal Appeals, which was established in 1969, or to our predecessor, the Court of Appeals, which was established in 1911. See, e.g., State v. Street, 117 Ala. 203, 23 So. 807 (1898) (deciding direct appeal under the predecessor to § 12-22-91, in the absence of any other existing state appellate court).

The judicial history of this statute demonstrates that the Alabama Supreme Court and the Court of Criminal Appeals agree that appeals under § 12-22-91 may properly be brought initially to this court. State v. Gooden, 570 So. 2d 865 (Ala.Cr.App. 1990) (affirming trial court, pursuant to § 12-22-91), State v. Franklin, 541 So. 2d 593 (Ala.Cr.App. 1989) (reversing trial court, on transfer from the Supreme Court and pursuant to § 12-22-91), State v. Clayton, 492 So. 2d 665 (Ala.Cr.App. 1986) (reversing trial court, pursuant to § 12-22-91), State v. Woodruff, 460 So. 2d 325 (Ala.Cr.App. 1984) (reversing trial court, pursuant to § 12-22-91), State v. Spurlock, 393 So. 2d 1052 (Ala.Cr.App. 1981) (reversing trial court, pursuant to § 12-22-91), State v. Wilkerson, 54 Ala. App. 104, 305 So. 2d 378 (reversing trial court, pursuant to the predecessor to § 12-22-91), cert. denied, 293 Ala. 774, 305 So. 2d 382 (1974). Although there are several cases in which the Supreme Court has decided a § 12-22-91 issue on direct appeal, State v. Rogers, 281 Ala. 27, 198 So. 2d 610 (1967), State v. Mills, 278 Ala. 188, 176 So. 2d 884 (1965), rev'd on other grounds, 384 U.S. 214, 86 S. Ct. 1434, 16 L. Ed. 2d 484 (1966), State v. Cecil, 216 Ala. 391, 113 So. 254 (1927) (deciding, pursuant to the predecessor to § 12-22-91, an appeal certified and transferred to Supreme Court from Court of Appeals), those cases were decided under § 7310, Code of Alabama of 1923, and its progeny. Section 7310 required that all appeals challenging the constitutionality of a statute must be heard by the Supreme Court, as opposed to the Court of Appeals. This statute was repealed by the adoption of the Code of Alabama 1975. The codifiers considered and rejected the idea of limiting our intermediate appellate courts' jurisdiction over constitutional issues.

Under § 12-22-91, the state may appeal the trial court's judgment in any case where the trial court holds the statute creating an offense unconstitutional. State v. Gautney, 344 So. 2d 232 (Ala.Cr.App.1977), and State v. Powe, 28 Ala. App. 402, 185 So. 781 (1939). When a statute is held unconstitutional by a pretrial order, that order is a final judgment and the state may appeal under § 12-22-91. See § 12-22-2 (stating that an appeal must be from a final judgment). See also Sparks v. State, 40 Ala. App. 551, 554, 119 So. 2d 596, 599 (1959) ("A final judgment, decision or order which will support an appeal, is one which puts an end to the proceedings between the parties to a cause in the court, and leaves nothing further to be done."), cert. denied, Sparks v. State, 270 Ala. 488, 119 So. 2d 600 (1960). Furthermore, § 12-22-91 applies to both misdemeanor and felony cases. ...


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