Capps v. State

• Decision Date: 23 August 1991
• Citation: 587 So.2d 442
• Parties: Dennis CAPPS v. STATE. CR 90-679.
• Court: Alabama Court of Criminal Appeals

Page 442

587 So.2d 442

Dennis CAPPS v. STATE.

CR 90-679.

Court of Criminal Appeals of Alabama.

Aug. 23, 1991.

John R. Thornton, Wetumpka, for appellant.

James H. Evans, Atty. Gen., and Robert E. Lusk, Jr., Asst. Atty. Gen., for appellee.

BOWEN, Judge.

Dennis Capps, the appellant, was convicted of escape in the first degree and was sentenced to 50 years' imprisonment as a habitual felony offender. He raises four issues on this appeal from that conviction.

I.

The appellant alleges that the indictment was void because (1) it charged escape and attempted escape--two separate offenses--in the same count, and (2) it identified the underlying conviction for which the appellant was in custody merely as burglary in the third degree without any identification of which particular burglary conviction was involved.

The indictment charged that the appellant,

"having been convicted of a felony, to-wit: Burglary Third Degree, did escape, or attempt to escape from custody imposed pursuant to that conviction, in violation of Section 13A-10-31, Code of Alabama, 1975."

"Duplicity" is the joining in a single count of two or more separate offenses. United States v. Burton, 871 F.2d 1566 (11th Cir.1989); United States v. Chrane, 529 F.2d 1236 (5th Cir.1976). "Duplicity does not rise to the level of a failure to charge an offense." Campbell v. State, 508 So.2d 1186, 1191 (Ala.Cr.App.1986). "[A] motion concerning a duplicitous count in an indictment must be made in accordance with Temporary Rule 16.3." Campbell, 508 So.2d at 1191. See Rules 15.2 and 15.3, A.R.Crim.P.

Although the motion to dismiss the indictment was untimely because it was filed after the appellant had pleaded to the merits of the indictment, the trial court apparently considered the merits of that motion. The record does not show that the State objected on the basis of untimeliness.

The appellant's argument that escape and attempted escape are two separate offenses is contrary to the statutory definition of escape in the first degree: "A person commits the crime of escape in the first degree if: ... (2) Having been convicted of a felony, he escapes or attempts to escape from custody imposed pursuant to that conviction." Ala.Code 1975, § 13A-10-31(a)(2) (emphasis added). "When an offense may be committed by different means or with different intents, such means or intents may be alleged in an indictment in the same count in the alternative." § 15-8-50. "When offenses are of the same character and subject to the same punishment, the defendant may be charged in an indictment with the commission of either in the same count in the alternative." § 15-8-52. "An indictment is sufficient which substantially follows the language of the statute, provided the statute prescribes with definiteness the constituents of the offense." Ex parte Allred, 393 So.2d 1030, 1032 (Ala.1980). See also Pinkard v. State, 405 So.2d 411, 414 (Ala.Cr.App.1981).

The appellant argues that the indictment did not inform him of the nature of the charge because he had two prior felony convictions for burglary and had recently been arrested for burglary. However, an indictment for escape in the first degree need not aver with particularity and definiteness the particular and specific felony conviction involved.

An indictment for escape in the first degree is sufficient if the indictment identifies by name the felony for which the appellant has been convicted. "[T]he indictment or information need not allege the particular original offense for which the prisoner was committed. Moreover, even though necessary, a description of the prior crime may be sufficiently made by reference to the statute establishing or defining the crime." 30A C.J.S. Escape § 25(3)(a) (1965) (footnotes omitted). An indictment, in the language of the statute, for aiding a prisoner lawfully confined in jail "under a charge of felony" to escape, is not demurrable for the failure to set out the particular felony, as "[u]nder the statute, proof of the charge of 'any felony' on the trial would sustain the indictment." Eubanks v. State, 20 Ala.App. 631, 104 So. 676 (1925).

II.

The appellant argues that his motion for judgment of acquittal should have been granted because the State "failed to prove that [he] was serving a Burglary III conviction as alleged in the indictment." Appellant's brief at 20.

State's exhibit 1 shows that the appellant pleaded guilty and was convicted of "Burglary III & Theft II," and was sentenced on May 19, 1987 to ten years' imprisonment to run concurrently with the sentence the appellant was then serving. Documents contained in the record on appeal indicate that the appellant was convicted of both burglary and theft but received only one sentence. The appellant argues that this shows that the appellant was convicted of only one crime and that the State failed to prove which crime that was.

We think that the evidence is clear that the appellant was convicted of two offenses but given only one sentence. That conclusion is supported by the response of the trial judge to the appellant's motion for judgment of acquittal.

"As defense counsel pointed out during examination of the witnesses in the Exhibit it only refers to one crime.

"It has been this court's policy and is this court's understanding based on the law of Alabama as promulgated by the Court of Criminal Appeals and the Alabama Supreme Court, that wherein a case such as this, and I'm talking about the Burglary and Theft cases, the offenses arise out of one continuous transaction and are part of the same transaction that a defendant may only receive one sentence. Pursuant to that, this court has treated Burglary, Third/Theft, Second, whether they be two counts or not, as being the type offense that would only gain one punishment. Therefore, in this particular case the court sentenced Mr. Capps to serve ten years in the penitentiary.

"That still does not stop or prohibit the offense from being two separate offenses. However, in compliance with the law, this court has on--I have no idea how many occasions, treated them as one for sentencing purposes. Therefore, based on the testimony and evidence offered in this case presently before the court, the court finds that the state has sufficiently proven that the defendant, Mr. Capps, in this escape case was serving a sentence for the offense of Burglary. So I find the state has met their burden in that regard."

R. 117-19. In Pardue v. State, 571 So.2d 320, 330 (Ala.Cr.App.1989), reversed on other grounds, 571 So.2d 333 (Ala.1990), this Court held:

"The defendant was improperly sentenced for both burglary and theft arising out of the same act.... Although § 15-3-8, Code of Alabama 1975, does not forbid double conviction for these offenses, it does forbid double punishment.... When the same criminal transaction supports both burglary and theft there can be but one punishment.... 'Whether this rule is served by a single sentence or concurrent sentences is a matter confided to the judge's discretion.' "

Thus, there is no merit to the appellant's contention that the State failed to prove that he was in custody at the time of his escape pursuant to a conviction for burglary as charged in the indictment. Equally without merit is the appellant's argument that there was a fatal variance between the pleading and the proof because the indictment charged that the appellant escaped from custody imposed pursuant to a conviction for burglary and the proof showed a conviction for burglary and theft. Even if a variance existed, it was not "material." "[O]ur Alabama case law is clear that there must be a material variance between indictment and proof before a conviction will be overturned for that reason." Ex parte Collins, 385 So.2d 1005, 1009 (Ala.1980) (emphasis in original).

The appellant also contends that the State failed to prove that he was in lawful custody because the officer from whom the appellant escaped had no authority to have the appellant in his custody based on the rules and regulations of the supervised intensive restitution (SIR) program, and because the officer was holding the appellant on an arrest warrant based on a bare bones affidavit.

The facts are that in April 1990 the appellant was an inmate serving a sentence in the Alabama prison system having been convicted of burglary and theft. He was serving his sentence on the Chilton County SIR Program. His supervising officer was Sergeant Leon Forniss. The appellant was placed on SIR on March 16, 1989. On April 24, 1990, the appellant was arrested and charged with burglary in the third degree and theft of property in the first degree and was placed in the custody of the Chilton County Sheriff's Office. A "hold" was placed on the appellant by the Alabama Department of Corrections. On April 24, 1990, the appellant was released to the custody of Sergeant Forniss, who was to transport the appellant from the Chilton County jail to the Staton Correctional Facility for disciplinary action resulting from the new criminal charges against the appellant. While en route, the appellant escaped when Sergeant Forniss allowed the appellant to use a restroom at a gasoline service station. The appellant was captured later that day.

In responding to the appellant's motion for acquittal on this ground, the trial judge stated:

"The other point that the court wishes to address is the issue of lawful custody. The cases in Alabama have held that when a defendant is on the SIR program that while he is outside...