State v. Anderson
Decision Date | 26 September 2008 |
Docket Number | CR-07-1171. |
Parties | STATE of Alabama v. Louis ANDERSON. |
Court | Alabama Court of Criminal Appeals |
Troy King, atty. gen., and Laura I. Cuthbert, asst. atty. gen., for appellant.
Roianne Houlton Conner and Timothy A. Offord, Jr., Montgomery, for appellee.
The appellee, Louis Anderson, was indicted for unlawfully breaking and entering a motor vehicle and second-degree theft of property. On February 26, 2008, he pled guilty to unlawfully breaking and entering a motor vehicle and second-degree theft of property, and the trial court adjudicated him guilty of unlawfully breaking and entering a motor vehicle. However, based on the appellee's statements regarding the facts of the case, the trial court reserved its adjudication of guilt on the second-degree theft of property charge so the State could present witnesses regarding the factual basis for the guilty plea. On March 21, 2008, the trial court sentenced the appellee, as a habitual offender, to serve a term of fifteen years in prison on the unlawfully breaking and entering a motor vehicle conviction. See § 13A-5-9(c)(1), Ala.Code 1975. However, because the State did not present any witnesses at that time regarding the second-degree theft of property charge, the trial court dismissed that charge. The State appealed that dismissal.
During the guilty plea proceeding, the following occurred:
(R. 8-12.)
During the sentencing hearing, because the State did not call any witnesses to testify regarding the second-degree theft of property charge, the trial court dismissed that count of the indictment. The court explained that, because the appellee denied taking the CD player and CDs out of the victim's vehicle, it wanted a law enforcement officer or other witness to testify as to where those items were found. The State objected, arguing that it had the discretion to determine whether the charge would be dismissed and that, at a minimum, the appellee had admitted to third-degree theft of property. It then asked that the trial court allow the appellee to withdraw his guilty plea to second-degree theft of property and be tried on that charge. However, the trial court stated that it would either allow the State to amend the charge to third-degree theft of property or dismiss that count of the indictment. After further discussion as to whether the State had had its witnesses in court at the appropriate times, the trial court dismissed the second-degree theft of property charge.
The State argues that the trial court erroneously dismissed the second-degree theft of property charge based on the insufficiency of the evidence. The appellee argues that the trial court dismissed the charge because the State did not proceed with the prosecution of the charge. During the sentencing hearing, the trial court indicated that it was dismissing the charge because the State did not comply with its order to have a witness or witnesses at that hearing to testify as to where the CD player and CDs were found. In essence, the trial court dismissed the second-degree theft of property charge because the State did not present evidence, during either the guilty plea proceeding or the sentencing hearing, to establish a sufficient factual basis to support the appellee's guilty plea based on that charge. However, we have previously held that it is not appropriate to dismiss an indictment prior to trial based on a lack of evidence. See State v. McClain, 911 So.2d 54 (Ala.Crim. App.2005); State v. Foster, 935 So.2d 1216 (Ala.Crim.App.2005); State v. Edwards, 590 So.2d 379 (Ala.Crim.App.1991).
Moreover, during the sentencing hearing, the State correctly noted that it had the discretion to determine whether to pursue a lesser charge and asked that the trial court allow the appellee to withdraw his guilty plea to second-degree theft of property and be tried on that charge. As the Alabama Supreme Court explained in Piggly Wiggly No. 208, Inc. v. Dutton, 601 So.2d 907, 910-11 (Ala.1992):
Also, in Dickerson v. State, 414 So.2d 998, 1008 (Ala.Crim.App.1982), abrogated on other ground by Ex parte Bohannon, 564 So.2d 854 (Ala.1988), we stated:
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