Sisson v. State

• Citation: 528 So.2d 1151
• Decision Date: 09 June 1987
• Docket Number: 6 Div. 161
• Parties: Roy Gayle SISSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1151

528 So.2d 1151

Roy Gayle SISSON v. STATE.

6 Div. 161.

Court of Criminal Appeals of Alabama.

June 9, 1987.

Rehearing Denied July 28, 1987.

Arthur Parker, Birmingham, for appellant.

Don Siegelman, Atty. Gen., and Tommie Wilson, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Roy Gayle Sisson was charged in the Jefferson County District Court, via Uniform Traffic Ticket and Complaint ["U.T.T.C."] H-0792207, with the following:

"Driving while under the influence of alcohol-Intoxilizer 5000--BAC .18 in violation of § 32-5A-191(a)(1) State Code." (R. 219)

He was found "guilty as charged" (R. 219), ordered to pay a fine of $300.00 plus court costs and ordered to perform 20 hours of community service. (R. 219)

Sisson appealed his conviction to the Jefferson County Circuit Court where, in a trial de novo, a jury found him "guilty of driving a vehicle while under the influence of alcohol as charged in the complaint." (R. 216, 226, 227) He was sentenced to pay a fine of $250.00 plus court costs and ordered to attend DUI school in Birmingham. (R. 216-217, 227)

Since the appellant, Sisson, does not raise the sufficiency of the evidence as an issue on appeal, recitation of the facts of the case is unnecessary.

I

The appellant contends that the trial court erred in refusing to grant his motions to dismiss the State's original and amended complaints filed in conjunction with his trial de novo in the circuit court.

On the day of trial, June 30, 1986, the State filed its first "District Attorney's Complaint" [the "original complaint"] which charged the following:

"Roy Gayle Sisson did drive or was in actual physical control of a vehicle while he was under the influence of alcohol, in violation of § 32-5A-191(a)(1)." (R. 220)

The appellant filed a motion to dismiss this original complaint. (R. 230-231)

A hearing was held on the motion. (R. 1-40) During the hearing, over the appellant's objection, the trial judge allowed the State to amend the original complaint. (R. 12) The amended complaint charged the following:

"Roy Gayle Sisson did drive or was in actual physical control of a vehicle while he was under the influence of alcohol, and there was 0.18 percent by weight of alcohol in his blood, in violation of § 32-5A-191(a)(1)." (R. 221) [hereinafter the "amended complaint"]

The appellant then filed a motion to dismiss the amended complaint. (R. 13, 232). This motion was overruled. (R. 18, 40)

A

The appellant claims that the district attorney's original complaint changed the nature of the offense by adding the words "or was in actual physical control of a vehicle ..." (Brief of appellant p. 15) We disagree.

In Abbot v. State, this court held that a similar variation did not change "the nature of the prosecution against the appellant on appeal to the circuit court." 494 So.2d 789, 791 (Ala.Crim.App.1986). In Abbot, the U.T.T.C. charged the appellant with " 'driving while under the influence of alcohol.' " Id. "On appeal to circuit court the district attorney's complaint charged that the appellant 'did on or about November 13, 1983 ... drive or was in actual physical control of a vehicle while under the influence of alcohol, in violation of § 32-5A-191, Code of Alabama 1975....' " Id. See also Jones v. State, 513 So.2d 50 (Ala.Crim.App.1986), writ granted, No. 86-268 (Jan. 28, 1987) (Dismissal of circuit court complaint not required where U.T.T.C. charged that appellant "did unlawfully operate a motor vehicle ..." and circuit court complaint charged that he "did ... operate or was in actual physical control of a motor vehicle ..."); Davis v. State, 505 So.2d 1303 (Ala.Crim.App.1987) (noting, "[i]t appears that, in this State the term 'driving' is used interchangeably with 'operating' ".)

We hold, therefore, that the use of the "actual physical control language" in the district attorney's complaint did not constitute a "change in the nature of the prosecution against the appellant on appeal to the circuit court." Abbot, supra. The trial judge properly refused to dismiss the complaint on that basis.

The appellant also contends, however, that the trial judge committed reversible error in failing to grant his motion to dismiss the original complaint on the grounds that it charged the appellant with a different offense than that charged in the U.T.T.C. He argues that the U.T.T.C. charged him with a violation of § 32-5A-191(a)(1), and the original complaint charged him with a violation of § 32-5A-191(a)(2).

We agree with the appellant that the original complaint charged him with a violation of § 32-5A-191(a)(2), however, it did not charge him with a different offense than that charged in the U.T.T.C. The original complaint was supported by the U.T.T.C., therefore, the trial judge did not commit reversible error in failing to grant the appellant's motion to dismiss the original complaint.

It is clear that a district attorney's complaint filed pursuant to § 12-22-113, Code of Alabama 1975 ("De novo trial in circuit court") "must have for its basis a valid foundation and must rest upon a charge supported by affidavit." Horn v. State, 22 Ala.App. 459, 460, 461, 117 So. 283 (1928).

Where a complaint filed by a district attorney is a complete departure from the charge included in the affidavit, the defendant's motion to strike the complaint should be granted. Ray v. State, 28 Ala.App. 373, 184 So. 480 (1938). And where a new and separate offense is included in the complaint on appeal, such new charges should be stricken on motion of defendant. Echols v. State, 16 Ala.App. 138, 75 So. 814 (1917).

The original complaint charged the appellant with driving (or being in actual physical control) of a vehicle while under the influence of alcohol. The "under the influence of alcohol" language was taken from the U.T.T.C. We hold, therefore, that the original complaint did not charge the appellant with a different offense than that charged in the U.T.T.C.

In construing the original complaint as charging a violation of § 32-5A-191(a)(2), we note that the mere citation of § 32-5A-191(a)(1) in the original complaint is insufficient to charge that particular offense in the absence of language specifying the "conduct sought to be condemned" by it. See Ex Parte Hightower, 443 So.2d 1272 (Ala.1983) ("indictment must specify conduct sought to be condemned...."); Griffin v. State, 428 So.2d 213 (Ala.Crim.App.1983) ("[a] reference to a statutory source in an indictment is a 'matter of convenience and not of substance.' "); Bice v. State, 472 So.2d 440 (Ala.Crim.App.1985) ("reference to [an] erroneous code section will be treated as mere surplusage"). Cf. Rule 15.2(b), A.Temp.R.Crim.P.; Corum v. City of Huntsville, 491 So.2d 1091 (Ala.Crim.App.1986) (citing Ex Parte Hightower, supra, for the proposition that mere inclusion of the applicable code section is insufficient notice of violation of any "provable part" of the statutory provision).

The appellant does not directly challenge the validity of the U.T.T.C. itself on appeal. See Ex Parte City of Dothan, 501 So.2d 1136 (Ala.1986) (where U.T.T.C. "is not verified and the defendant does not object to this defect before trial, then the objection to the court's personal jurisdiction of the defendant has been waived"); Nailer v. State, 18 Ala.App. 127, 90 So. 131 (1921) (where, on appeal to the circuit court for trial de novo, the district attorney files a complaint, the plea or demurrer of defendant is to such complaint and not to original affidavit). It is obvious, however, that the confusion which existed with respect to the State's charges against the appellant was due, at least in part, to the description of the offense as it appeared in the U.T.T.C. In the portion of the U.T.T.C. of the type used to charge this appellant, where the "Description of the Offense" is given, the following appears:

"...

"(3) Driving without first obtaining a driver's license

"Driving while under the influence of

"(4) Alcohol Test Type ____ BAC ____

"(5) Controlled Substances...." (R. 219)

When this particular form of the U.T.T.C. is used to charge a violation of § 32-5A-191, it is unclear whether the defendant is being charged with subsection (a)(1) or (a)(2) of the statute where the arresting officer determines the defendant's blood alcohol content to be .10 percent or above and notes it on the U.T.T.C.

We note that the discrepancy between the statute and the U.T.T.C. was remedied when the U.T.T.C. form was changed to read as follows:

"...

"(3) Driving without first obtaining a driver's license

"Did drive or was in actual physical control of a vehicle while:

"(4) There was .10% or more by weight of alcohol in his blood. BAC ____

"(4) Under the influence of alcohol

"(5) Under the influence of controlled substances ..."

Rule 19, A.R.Jud.Adm., as amended October 28, 1985, effective January 1, 1986. See Corum, supra at 1093; Gandy v. City of Birmingham, 478 So.2d 11 (Ala.Crim.App.1985) ("use of U.T.T.C. is required of all law enforcement agencies and courts of this state").

The appellant was charged via the "old" U.T.T.C. on February 1, 1986 (R. 219), after the effective date of the amendment to Rule 19. While we note that the Jefferson County Sheriff's Department Officer who filled out the U.T.T.C. in this case should have used the new form, we still consider it sufficient to support the complaint filed in circuit court. See Jones, supra ("Criminal charges brought by affidavit and warrant are 'in a large measure informal' "). The U.T.T.C. which formed the basis of the charge against this appellant sufficiently stated the offense and adequately advised the appellant of the charge against him. See Gardner v. State, 468 So.2d 265 (Fla.Dist.Ct.App.1985) (U.T.T.C. which charged appellant with "Driving under the influence of alcoholic beverages, narcotic drugs, barbituates, or stimulants" adequately informed the appellant of the charges against him). Layman v. State, 455 So.2d 607 (Fla.Dist.Ct.App...