Mann v. State, 8 Div. 244

• Decision Date: 14 May 1985
• Docket Number: 8 Div. 244
• Parties: Harold Ray MANN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1225

473 So.2d 1225

Harold Ray MANN v. STATE.

8 Div. 244.

Court of Criminal Appeals of Alabama.

May 14, 1985.

Rehearing Denied June 11, 1985.

Certiorari Denied Aug. 23, 1985

Alabama Supreme Court 84-996.

Gary W. Alverson, Tuscumbia, for appellant.

Charles A. Graddick, Atty. Gen., and Tommie Wilson, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

Appellant Harold Ray Mann pleaded guilty to the offense of leaving the scene of an accident in violation of § 32-10-1(a), Code of Alabama 1975, and was sentenced to five years' imprisonment, from which he prosecutes this appeal. This section provides as follows:

"The driver of any motor vehicle involved in an accident resulting in injury to or death of any person, or in damage to a motor vehicle or other vehicle which is driven or attended by any person, shall immediately stop such vehicle at the scene of such accident or as close thereto as possible and shall then forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of § 32-10-3. Every such stop shall be made without obstructing traffic more than is necessary."

I

The indictment, omitting the technical parts, reads as follows:

"... Harold Ray Mann, alias Ray Mann, whose name is otherwise unknown to the Grand Jury than as stated, the driver of a motor vehicle involved in an accident resulting in the death of Brian Keith Posey, Benny Michael Burleson and Barry Layne Hill, did fail immediately to stop such vehicle being operated by him at the scene of the accident, and give his name, address and the registration license number of his vehicle, and render reasonable assistance of the said Brian Keith Posey, Benny Michael Burleson and Barry Layne Hill, in violation of 13-10-1 of the Code of Alabama...."

Motions to dismiss were filed on April 16, and August 3, 1984, pointing out the miscitation of the code section.

There is no evidence that there was ever any ruling on either motion to dismiss. On the 6th day of August, 1984, Mann pleaded guilty. Mann does not cite any adverse ruling as regards his motions to dismiss and none appears of record. A plea to the merits of an indictment waives all waivable defects in the indictment. The question then is, is the citation to the wrong code section such a flaw that the indictment is thereby rendered void? We find that it is not.

The citation to a code section is required by the rules laid down by our Supreme Court. Rule 15.2(b), A.R.Crim.P.Temp., states:

"The indictment or information shall state for each separate offense, other than lesser included offenses, the official or customary citation of the statute, rule, regulation, or other provision of law which the defendant is alleged to have violated."

The comment to the rule states:

"Section (b) requires that the citation of any applicable statute, etc., be included.

Since adoption of the new criminal code, this should not be an undue burden. It will ensure that the defendant and his attorney will know exactly what offense is charged and thus be able to discover and to take advantage of any exception, defense, or affirmative defense permitted by law."

In Ex parte Bush, 431 So.2d 563 (Ala.1983), the Supreme Court held:

"Miscitation of a code section does not void an indictment which otherwise states an offense; and, in the absence of a showing of actual prejudice to the defendant, reference to the erroneous code section will be treated as mere surplusage. Mays v. City of Prattville, 402 So.2d 1114, 1116 (Ala.Cr.App.1981); Coker v. State, 396 So.2d 1094, 1096 (Ala.Cr.App.1981); Fitzgerald v. State, 53 Ala.App. 663, 665, 303 So.2d 162 (1974); Allen v. State, 33 Ala.App. 70, 73, 30 So.2d 479, petition struck, 249 Ala. 201, 30 So.2d 483 (1947); accord, United States v. Kennington, 650 F.2d 544 (5th Cir.1981); Theriault v. United States, 434 F.2d 212, 213 n. 2 (5th Cir.1970), cert. denied, 404 U.S. 869, 92 S.Ct. 124, 30 L.Ed.2d 113 (1971)."

We accept and adopt the reasoning of the Supreme Court in Bush. The error of failure to cite the correct code section in an indictment does not of itself render the indictment absolutely void. It is therefore an error which may be waived.

II

Appellant Mann next contends that the court failed to establish that a sufficient factual basis existed for the taking of appellant's guilty plea.

The facts in this case indicated that the victims of the fatal automobile accident met each other on the evening of the accident in Haleyville, Alabama. Thereafter, they went to a disco in Muscle Shoals, where they had drinks. The vehicle occupied by the victims of this accident, Bryan Keith Posey, Benny Michael Burleson and Barry Layne Hill, collided with the appellant's vehicle, left the road and landed upside down in a creek. The cause of death of the three men was drowning.

The vehicles were traveling side by side on Highway 43 south in Colbert County at a speed over the speed limit. The vehicles struck each other, making a dent in the door of the appellant's automobile. The following minute entry was made by the court in connection with this guilty plea:

"August 6, 1984. This day in open court came the state of Alabama by its District Attorney, and the defendant in his own proper person and with his attorney, and defendant in open court on this day informs the Court that he wishes to withdraw his plea of Not Guilty to the Indictment in this case charging him with the offense of Leaving the Scene of an Accident and plead Guilty.

"Thereupon, in open court on this day, the defendant filed with the Court a written REQUEST TO ENTER GUILTY PLEA; and upon defendant stating to the Court that he has read said REQUEST or has had said REQUEST read to him by counsel; that counsel has explained to him the elements of this crime, the minimum and maximum punishment for this offense; that defendant understands the various pleas that may be entered to this charge in the Indictment; that defendant understands that upon a plea of guilty he waives his constitutional rights to a public jury trial, the right to confront his accusers and have them cross-examined by his attorney, the right to call witnesses in his own behalf, the right to testify in his own behalf, if he so chooses, and the right to have the State of Alabama prove his guilt beyond a reasonable doubt; that defendant understands that upon a plea of guilty the Court may sentence him to the same punishment as if he had been convicted by a jury, and that the Court may not give the defendant probation even though the defendant asks for it; upon defendant stating to the Court that no one has promised him probation, reward, or induced him to get him to plead guilty, except the agreed and recommended sentence between the District Attorney and the defendant, and that defendant understands that any agreement or recommendation made between the District Attorney and the defendant does not bind the Court and may not be followed in imposing sentence or granting probation; the Court thereupon determined that the defendant has knowingly, intelligently and voluntarily executed a written REQUEST TO ENTER GUILTY PLEA, and that the defendant could knowingly, intelligently and voluntarily enter a plea of guilty to this charge.

"Thereupon, in open court on this day, in the presence of the District Attorney, and defendant's attorney, the defendant plead guilty to the offense Leaving the Scene of an Accident, as charged in the indictment.

"It is ORDERED and ADJUDGED by the Court that the defendant is guilty of the offense of Leaving the Scene of an accident, as charged in the indictment.

"The defendant makes a request to the Court for probation.

"It is ORDERED and ADJUDGED by the Court that the probation officer prepare a pre-sentence report, and that this case be passed and continued for sentence and probation hearing.

"October 16, 1984. This day in open court came the state of Alabama by its District Attorney, and the defendant in his own proper person and with his attorney, and defendant being in open court on this day to receive sentence upon a conviction had against him for the offense of Leaving the Scene of an Accident and for hearing on the defendant's request for probation.

"The defendant being asked by the Court if he had anything to say why the judgment and sentence of the law should not be passed upon him presented testimony for the court's consideration, and the Court having received the presentence investigation report filed by the Probation Officer, the same being argued by counsel and understood by the Court; the Court makes the following findings:

"1. That on January 21, 1984, the defendant was operating a motor vehicle in Colbert County on Highway 43 South, and his passenger was Lee Husley, at which time Brian Posey was operating a motor vehicle at the same time and place, and his passengers were Michael Burleson, Layne Hill and James Lingle. At the same time and place both vehicles were traveling side-by-side, traveling at a speed over the speed limit, and said vehicles struck each other, the Posey vehicle striking the left door of the defendant's vehicle at which time the Posey vehicle left the roadway, struck a metal guardrail and overturned in a creek and three (3) occupants of said automobile, Brian Keith Posey, Benny Michael Burleson and Barry Layne Hill were pronounced dead at the scene.

"2. The Court further finds that the defendant stopped a short distance down the highway from the accident, and got out and looked at his car and then went on home, and the next morning he was informed about the death of the occupants of the Posey vehicle.

"3. The Court further finds that the defendant is 20 years of age; he is married and lives with his mother in Haleyville, Alabama, and is employed at Piggly-Wiggly.

"4. The Court further finds that prior to the accident in question, the defendant, Lee Husley, Brian Keith Posey, Michael Burleson, Layne Hill and James Lingle had...