State v. Britain

PATTERSON, Judge.

The appellee, John E. Britain, alias, was charged by a three-count indictment; two counts charged Britain with the offense of use of official position or office for personal gain, as proscribed by § 36-25-5, Code of Alabama 1975. On Britain’s motion to dismiss, the circuit court dismissed these two counts on the ground that § 36-25-27(a), the punishment provision for a violation of the Code of Ethics, is unconstitutional because it authorizes both misdemeanor and felony punishment for the same offense, in violation of Article 1, Section 6, of the Alabama Constitution of 1901.

By virtue of our supreme court’s holding in Newberry v. State, [Ms. 85-322, April 18, 1986] (Ala.1986), we find that the punishment provision of Code of Ethics is constitutionally valid. In Newberry, the court determined that the punishment provision of the vehicular homicide statute (which like the instant statute provides for punishment in both the felony and the misdemeanor range) “does not violate the guarantees of Article 1, Section 6, of the Alabama Constitution, because from a reading of the statute a defendant could be reasonably apprised of the accusation against him or her and the possible penal consequences.” Slip op. at page 5. We hold likewise in regard to § 36-25-27.

Accordingly, we reverse and remand this cause for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

All Judges concur.