Graves v. City of Athens

472 So. 2d 720 (1985)

Teddy Wayne GRAVES v. CITY OF ATHENS.

8 Div. 203.

Court of Criminal Appeals of Alabama.

May 28, 1985.

Alice J. Hancock, Athens, for appellant.

Jerry Batts of Sherrill & Batts, Athens, for appellee.

TYSON, Judge.

Teddy Wayne Graves was charged with the offense of driving under the influence of alcohol on September 4, 1983, by Uniform Traffic Citation issued by Officer Marty Bruce of the Athens, Alabama Police Department.

This case was tried in Athens Municipal Court and Graves was found guilty. The cause was then appealed to Limestone County Circuit Court where Graves was again found guilty and sentenced to 50 days in jail, the sentence being suspended and the appellant was placed on probation for one year and fined $500.

*721 His motion for new trial was overruled following a hearing.

I

The appellant has properly raised the dispositive issue on this appeal pointing out that the Uniform Traffic Citation issued by Officer Marty Bruce was not sworn to by the officer before a magistrate as required by law.

The Alabama Supreme Court in Ex Parte Dison, 469 So. 2d 662 (1984), pointed out that where, as here, such occurs:

"... [W]hen the initial affidavit in a misdemeanor case is not merely irregular, but void, it will not support the filing of a sufficient information or complaint by the district attorney for a trial de novo in circuit court. "... "... [T]he circuit court did not have jurisdiction in petitioner's trial de novo because the district court judgment was void as being based upon an unverified complaint. Hence, petitioner's conviction in circuit court was itself void."

Because of the error herein shown, this cause is hereby reversed and remanded on authority of Ex Parte Dison, Alabama Supreme Court, (1984), 469 So. 2d 662.

REVERSED AND REMANDED.

All the Judges concur.