Ex parte Wesley, 84-809

Citation481 So.2d 1162
Decision Date08 November 1985
Docket NumberNo. 84-809,84-809
PartiesEx parte Paul WESLEY. (Re: Paul Wesley v. State.)
CourtSupreme Court of Alabama

Page 1162

481 So.2d 1162
Ex parte Paul WESLEY.
(Re: Paul Wesley
No. 84-809.
Supreme Court of Alabama.
Nov. 8, 1985.

Paul M. Harden, Monroeville, for petitioner.

Page 1163

Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for respondent.

BEATTY, Justice.

Certiorari was granted in this case to review that part of the opinion of the Court of Criminal Appeals, 481 So.2d 1155, holding that petitioner was properly charged under the original indictment "after reversal of his plea of guilt to an offense which was no longer a lesser included offense under the indictment."

Petitioner was first tried under an indictment which charged him with first degree robbery. He pleaded guilty to "attempted robbery" after the indictment was amended to charge "attempted robbery." Wesley was then convicted and sentenced to a term of five years' imprisonment. He appealed. In Wesley v. State, 448 So.2d 468 (Ala.Crim.App.1984), the Court of Criminal Appeals reversed petitioner's conviction and remanded the case on the ground that, the general attempt statute no longer being applicable to robbery offenses, the crime of attempted robbery "now constitutes robbery." 448 So.2d at 469. See Code of 1975, § 13A-8-41; Petty v. State, 414 So.2d 182 (Ala.Crim.App.1982); Reed v. State, 372 So.2d 876 (Ala.1979). That court added:

"For aught that appears in the record, the factual circumstances of this case might support a conviction for any of the three degrees of robbery. The state is, of course, free to reindict this appellant for the appropriate offense. Petty v. State, [414 So.2d 182 (Ala.Crim.App.1982) ]."

However, on remand, the State of Alabama did not reindict petitioner but put him to trial upon the original indictment for robbery in the first degree. Such a course was erroneous. The clerk's record in the first case establishes that, with the petitioner's consent, the indictment charging first degree robbery was amended to charge attempted robbery, and it was to the amended indictment charging attempted robbery that petitioner pleaded guilty and received the sentence of five years in the first case. Accordingly, petitioner pleaded guilty to a charge which at that time did not exist, and, accordingly, he could not be sentenced under such a void indictment. Petty v. State, supra. It follows that when the State of Alabama chose to try petitioner again on the void amended indictment, his conviction was erroneous. However, as stated in...

To continue reading

Request your trial
18 cases
  • Acres v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 10 Febrero 1987
    ...definition of robbery to include what had traditionally been regarded as assault with intent to rob and attempted robbery. Ex parte Wesley, 481 So.2d 1162 (Ala.1985); Petty v. State, 414 So.2d 182, 183 (Ala.Cr.App.1982). Under the present statutory definition of robbery, it is not essential......
  • Tulley v. City of Jacksonville
    • United States
    • Alabama Court of Criminal Appeals
    • 3 Octubre 2014
  • Williams v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 13 Mayo 1986
    ...Livingston Bail Bonds v. State, 416 So.2d 423 (Ala.1982).4 This case is distinguished from the Supreme Court's holding in Wesley v. State, 481 So.2d 1162 (Ala.1985) in which the Supreme Court held that the defendant could not be tried on the original indictment after his guilty plea to a le......
  • McNeely v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 12 Noviembre 1986
    ...court has nothing before it to review. Wesley v. State, 481 So.2d 1155, 1161 (Ala.Cr.App.1985), rev'd on other grounds, Ex parte Wesley, 481 So.2d 1162 (Ala.1985) on remand, 481 So.2d 1163 (Ala.Cr.App.1985). Even if this issue had been preserved, the trial court committed no "The accepted r......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT