Hovater v. State , 552 So. 2d 191 ( 1989 )

552 So.2d 191 (1989)

Larry HOVATER
v.
STATE.

8 Div. 259.

Court of Criminal Appeals of Alabama.

September 29, 1989.

William K. Hewlett, Tuscumbia, for appellant.

Don Siegelman, Atty. Gen., and Robert E. Lusk, Jr., Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant was convicted of driving under the influence of alcohol. The appellant pleaded guilty in district court and was sentenced to six months' imprisonment. This sentence was suspended, contingent on the appellant's completion of DUI school and the appellant's refraining from driving under the influence. The appellant was further ordered to spend 48 hours in jail within the pending 30 day period and was fined $500 and court costs. The appellant thereafter gave notice of appeal.

He was charged in circuit court with driving under the influence of alcohol, in violation of § 32-5A-191(a)(2), Code of Alabama (1975). As noted by the State on appeal, there is no indication in the record that the appellant was ever arraigned in circuit court or that he waived arraignment. Further, the appellant's counsel clearly brought that fact to the trial court's attention. Nevertheless, he was tried, found guilty, and sentenced to 48 hours in jail and fined $750 and court costs.

The State has declined to submit argument and requests that this cause be reversed and remanded for a new trial on the authority of Benson v. State, 473 So.2d 1131 (Ala.Cr.App.), affirmed, 473 So.2d 1132 (Ala.1985), and the cases cited therein. Because there is no indication that the appellant was ever arraigned or that he waived arraignment, this cause is reversed and remanded for a new trial.

REVERSED AND REMANDED.

All Judges concur.