State v. Savage, CR-06-0022.

• Decision Date: 20 December 2006
• Docket Number: CR-06-0022.
• Parties: Ex parte State of Alabama. (In re STATE of Alabama v. Parrish SAVAGE).
• Court: Alabama Court of Criminal Appeals

961 So.2d 181

Ex parte State of Alabama.

(In re STATE of Alabama v. Parrish SAVAGE).

CR-06-0022.

Court of Criminal Appeals of Alabama.

December 20, 2006.

Eleanor I. Brooks, district atty., and Kevin P. Davison, deputy district atty., for petitioner.

Michael L. Kidd, Montgomery, for respondent.

PER CURIAM.

The district attorney for the Fifteenth Judicial Circuit filed this petition for a writ of mandamus directing Judge William Shashy to set aside his order dismissing the indictment against Jamell Savage.¹ In May 2006, Savage was indicted for burglary. Pursuant to a plea agreement, Savage pleaded guilty to burglary in the third degree. Before Savage was sentenced, the State informed the circuit court that it had just discovered that Savage had been using his brother's identity and that he had been indicted under his brother's name, Jamell Savage, instead of his true name Parrish Savage.² The State moved to correct the court records to reflect Savage's true name. On his own motion, Judge Shashy set aside the guilty plea, dismissed the indictment, and directed the State to reindict Savage under his true name — Parrish Savage. This timely petition for a writ of mandamus followed. See Rule 21(a), Ala.R.App.P.³

The State contends that Savage waived any irregularity in the indictment by pleading guilty to burglary in the third degree. It asserts that the circuit court erred in unilaterally setting aside the guilty plea and dismissing the indictment when Savage never objected to it. Savage asserts that the State has a right to appeal under Rule 15.7, Ala. R.Crim.P.; therefore, it cannot avail itself of a petition for a writ of mandamus because it has another available remedy. Savage does not dispute any of the factual assertions made by the State in its mandamus petition. "When a respondent fails to refute allegations in a mandamus petition the reviewing court must consider the petitioner's assertions to be true." State v. Maddox, 828 So.2d 946, 948 (Ala.Crim.App.2001).

Rule 15.7, Ala.R.Crim.P., provides that the State may appeal certain pretrial rulings dismissing an indictment. However, once jeopardy has attached the State no longer has a right to appeal. As we stated in Ex parte City of Tarrant, 850 So.2d 366, 367-68 (Ala.Crim.App.2002):

"Once jeopardy has attached, the City no longer has the right to appeal under Rule 15.7. The City's only remedy at that point is to file a petition for a writ of mandamus. The Alabama Supreme Court in Ex parte Sullivan, 779 So.2d 1157 (Ala.2000), noted that mandamus is available to review a trial court's dismissal of a case once jeopardy has attached. The Court stated:

"`The power of an appellate court of this state to issue a writ of mandamus at the request of the State in a criminal case when the Legislature has not provided the remedy of appeal is not unqualified. We have said:

"`"Casual resort to mandamus cannot be permitted to undermine an accused's right against double jeopardy, and only the rarest of circumstances merit an intervention in a criminal case by mandamus; nevertheless, circumstances can arise which present a compelling need for the issuance of mandamus to further important countervailing public interests."

"`Ex parte Nice, 407 So.2d [874] at 880 [(Ala.1981)] (citations omitted) (emphasis omitted). Clearly, a writ of mandamus is a supervisory order; thus, an appellate court may issue this writ in any situation, within recognized limits, where this writ is necessary to protect the proper judicial administration of the courts.'

"Ex Parte Sullivan, 779 So.2d at 1161. This case is properly before us by mandamus petition; thus, we will proceed to the merits of the case."

In relation to a guilty plea, jeopardy attaches when a guilty plea is entered and a court of competent jurisdiction accepts that plea. See Odoms v. State, 359 So.2d 1162, 1164 (Ala.Crim.App.1978). Here, Judge Shashy accepted Savage's guilty plea, and the only matter to be resolved was Savage's sentence. Judge Shashy, a circuit judge, clearly had jurisdiction to accept a guilty plea to a felony. See § 12-11-30, (2), Ala.Code 1975. Thus, jeopardy had attached; therefore, the State's only remedy was to file a petition for a writ of mandamus.

Section 15-8-90, Ala.Code 1975, provides:

"An indictment may be amended, with the consent of the defendant entered of record, when the name of the defendant is incorrectly stated or when any person, property or matter therein stated is incorrectly described."

However, Rule 13.5, Ala.R.Crim.P., supersedes this Code section. See Edwards v. State, 480 So.2d 1259, 1261 (Ala.Crim.App. 1985) (Rule 15.5(a), Ala. R.Crim.P.Temp now Rule 13.5(a), Ala.R.Crim.P., "supplants § 15-8-90, Code of Alabama, 1975.") Rule 13.5(a), Ala.R.Crim.P., states:

"A charge may be amended by order of the court with the consent of the defendant in all cases, except to change the offense or to charge new offenses not contemplated by the original indictment. The court may permit a charge to be amended without the defendant's consent, at any time before verdict or finding, if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced."

Rule 13.5(c)(2), Ala.R.Crim.P., states:

"No charge shall be deemed invalid, nor shall the trial, judgment, or other proceedings thereon be stayed, arrested, or in any manner affected, for any defect or imperfection in the charge which does not tend to prejudice the substantial rights of the defendant upon the merits."

In discussing the impact of Rule 13.5, Ala.R.Crim.P., on § 15-8-90, Ala.Code 1975, this court in Hamilton v. State, 680 So.2d 987, 996-97 (Ala.Crim.App.1996), stated:

"The trial court's allowing the State to amend the indictment to add `Jr.' to the name on the indictment was not reversible error.

"`Section 15-8-90 states that an indictment may be amended "when the name of the defendant is incorrectly stated or when any person, property or matter therein is incorrectly described," but only when the defendant consents to the amendment. However, Rule 13.5(a), A.R.Crim.P., states that as long as "no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced," an indictment may be amended by the court before the verdict or finding without the defendant's consent. The commentary to that rule notes that Rule 13.5(a), changes the prior procedure set out in § 15-8-90, "except as to amendments to charge a new offense not contemplated in the original indictment."'

"Capers v. State, 606 So.2d 207 (Ala.Cr. App.1992) (footnote omitted; emphasis original).

"After reviewing the record, we conclude that no substantial rights of the appellant were prejudiced by amending the indictment. There is no indication from the record that the appellant did not know and understand that he was the person named in the indictment. The appellant has not shown that he suffered any prejudice by the amendment."

The remedy for a claim of misnomer in an indictment is to file a motion prior to entering a plea. "After a plea to the merits, the appellant's claim of misnomer comes too late." Hembree v. City of Birmingham, 381 So.2d 664, 666 (Ala. Crim.App.1980). "Objections based on defects in the commencement of the proceeding or in the charge, other than lack of subject matter jurisdiction or failure to charge an offense, may be raised only by pretrial motion as provided in Rule 15.3." Rule 15.2(a), Ala. R.Crim.P. (emphasis added).

Defects concerning the name of the accused in an indictment are defects related to personal jurisdiction. "A misnomer is not a jurisdictional defect or a failure to charge an offense." Mayo v. State, 458 A.2d 26, 27 (Del.1983). Defects in personal jurisdiction may be waived if not raised in a timely manner and if they have no impact on a court's subject-matter jurisdiction. See Finney v. State, 860 So.2d 367 (Ala.Crim.App.2002). As the Alabama Supreme Court recently noted in Ex parte Seymour, 946 So.2d 536 (Ala. 2006):

"The language `jurisdiction to render judgment or impose sentence' refers to the court's jurisdiction over the subject matter, as opposed to the person. Although a court must have both personal jurisdiction and subject-matter jurisdiction in an action, Woolf v. McGaugh, 175 Ala. 299, 303, 57 So. 754, 755 (1911), defects in personal jurisdiction are waived if they are not raised before trial. City of Dothan v. Holloway, 501 So.2d 1136, 1139 (Ala.1986)."

946 So.2d at 537 n. 3.

In Finney v. State, this Court considered the validity of an indictment that omitted the defendant's name from a count contained in the indictment. In finding that the defect was not fatal, we stated:

"Although we have found no Alabama cases directly on point with respect to this issue, we have found three cases from other jurisdictions with similar situations. In all three of those cases, the omission of the accused's name from the body of the charging instrument was found not to be fatal. See State v. Nixon, 977 S.W.2d 119, 121 (Tenn. Crim.App.1997) (noting that the defendants had waived their challenge to the indictment because `[t]he omission of the defendants' names in the body of the indictment neither relates to subject matter jurisdiction nor failure to allege an offense,' but nevertheless holding that `[s]ince the defendants were named on the cover sheet . . . it is clear that they were the persons referred to in the body of the indictment'); State v. Geary, 884 S.W.2d 41, 44 (Mo.Ct.App.1994) (holding that failure of indictment to include the defendant's name was not fatal because the original complaint that initiated the prosecution properly listed the defendant's name and `[t]he record indicate[d] that [the] defendant ... knew what he was charged with and what facts the charge was based upon'); and Hill v. State, 523 P.2d 1114, 1116 (Okla. Crim.App.1974) (holding that information was not fatally defective because `while defendant's...