Heidelberg v. State
| Decision Date | 01 February 1991 |
| Citation | 575 So.2d 621 |
| Parties | Willie HEIDELBERG v. STATE. CR 89-1100. |
| Court | Alabama Court of Criminal Appeals |
Everette A. Price, Jr., Brewton, for appellant.
Don Siegelman, Atty. Gen., and Yvonne A. Henderson, Asst. Atty. Gen., for appellee.
The appellant, Willie Heidelberg, was indicted and convicted for the offense of promoting prison contraband in the first degree, as proscribed by § 13A-10-36(a)(2), Code of Alabama 1975. This conviction was pursuant to his plea of guilty. He was sentenced to 15 years' imprisonment as a habitual offender with three prior felony convictions, the sentence to run concurrently with the sentence he was presently serving.
This cause was originally submitted to this court for review pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In exercising our duty mandated by the Anders Court, we reviewed the record and asked the parties to address the following issue: Is the instant indictment void for failing to allege the element of "[b]eing a person confined in a detention facility," § 13A-10-36(a)(2)?
In response to this request, the attorney general argues that this issue is not preserved because it was not raised in the trial court. This argument is without merit, for we are bound, even in the absence of an objection, to take notice of the indictment's failure to include an essential element of the offense. See Stewart v. State [Ms. 1 Div. 34, September 21, 1990] (Ala.Cr.App.1990), and cases cited therein. "[E]ven if a court has jurisdiction of the person and of the crime, an accusation made in the manner prescribed by law is a prerequisite to the court's power to exercise its jurisdiction." State v. Thomas, 550 So.2d 1067, 1070 (Ala.1989). See also Ross v. State, 529 So.2d 1074, 1078 (Ala.Cr.App.1988) (); Tinsley v. State, 485 So.2d 1249, 1251 (Ala.Cr.App.1986) ().
Clearly, the instant indictment failed to allege an essential element. Section 13A-10-36(a)(2) provides the following: "A person is guilty of promoting prison contraband in the first degree if ... [b]eing a person confined in a detention facility, he intentionally and unlawfully makes, obtains or possesses any deadly weapon, instrument, tool or other thing which may be useful for escape." The indictment to which Heidelberg pleaded...
To continue reading
Request your trial
-
Travis v. State
...that they must not be left to inference."' 417 So.2d at 613 (quoting State v. Seay, 3 Stew. 123, 131 (Ala.1830))." Heidelberg v. State, 575 So.2d 621, 622 (Ala.Cr.App.1991). The word "while," which is the descriptive term contained in the indictment, is synonymous with "during," and is suff......
-
Hale v. State
...it must not leave any element open to inference." Lanier v. State, 733 So.2d 931, 936 (Ala.Crim.App.1998) (citing Heidelberg v. State, 575 So.2d 621 (Ala. Crim.App.1991)). "Failure to charge an offense is the kind of defect involved in due process of law and it cannot be waived. Although th......
-
Ex parte Lewis
...trial or on direct appeal does not constitute a waiver. Byrd v. State, 763 So.2d 987 (Ala.Crim.App.2000), citing Heidelberg v. State, 575 So.2d 621, 622 (Ala. Crim.App.1991). According to Ivey, "inten[t] to cause physical injury" is an essential element of assault in the second degree under......
-
Burnett v. State
...indicate that Burnett can be retried, because the trial court had no jurisdiction and jeopardy did not attach. E.g., Heidelberg v. State, 575 So.2d 621 (Ala.Crim.App.1991). Application of that rule to this case, in my opinion, is blatantly unfair and violates the spirit of, if not the techn......