City of Mobile v. Welch , 1990 Ala. Crim. App. LEXIS 2073 ( 1990 )

572 So. 2d 1322 (1990)

CITY OF MOBILE
v.
Melanie Beatrice WELCH.

CR 89-607.

Court of Criminal Appeals of Alabama.

November 30, 1990.

Mark Ulmer, Mobile, for appellant.

Robert Clark, City Atty., Mobile, for appellee.

McMILLAN, Judge.

Melanie Beatrice Welch, was arrested and charged with harassment for using "direct abusive and/or obscene language" with the "intent to harass, annoy or alarm W.F. Vickery," in violation of § 41-105 of the Mobile City Ordinances and § 13A-11-8(a), Code of Alabama 1975. She was found guilty as charged, in the Municipal Court of Mobile, and she was sentenced to serve 30 days in the Mobile city jail, the sentence to be suspended for one year. She appealed her conviction to the Circuit Court of Mobile County; there, both parties waived a trial by jury and submitted the transcript from the municipal court proceedings for the circuit court's review. Welch made a motion for directed verdict of acquittal, which was granted by the circuit court.

The City of Mobile has filed an appeal from the judgment of the circuit court. However, with the exception of certain pretrial appeals (see Rule 17, A.R.Cr.P.Temp.) and habeas corpus cases, the State is not entitled to an appeal from a judgment in a criminal case in the absence of a judgment of the trial court holding the statute under which the indictment or information was preferred to be unconstitutional. State v. Gautney, 344 So. 2d 232 (Ala.Cr.App.1977); State v. Powe, 28 Ala.App. 402, 185 So. 781 (1939); State v. Cagle, 42 Ala.App. 344, 164 So. 2d 512 (1964). See also § 12-22-91, Code of Alabama 1975. The State is not entitled to appeal the circuit court's judgment of acquittal and discharge of the appellee.

APPEAL DISMISSED.

All Judges concur.