Williams v. State

• Decision Date: 13 May 1986
• Docket Number: 3 Div. 133
• Parties: Jerry Wayne WILLIAMS, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 819

494 So.2d 819

Jerry Wayne WILLIAMS, alias v. STATE.

3 Div. 133.

Court of Criminal Appeals of Alabama.

May 13, 1986.

Rehearing Denied June 10, 1986.

Certiorari Denied Sept. 19, 1986

Alabama Supreme Court 85-1090.

Jeffery C. Duffey of Duffey & Wallace, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Jerry Wayne Williams was indicted in March of 1984 for burglary in the first degree and sodomy in the first degree. On April 18, 1984, the appellant pled guilty to the burglary charge and the sodomy charge was nolle prossed. On May 30, 1984, the appellant was allowed to withdraw his guilty plea. The following day the State filed a motion to reinstate the sodomy indictment. This motion was granted on July 12, 1984 and the two cases were consolidated for trial.

The jury found the appellant guilty of both offenses. Following trial, the State filed a motion to invoke § 13A-5-6(a)(4), Code of Alabama 1975 to enhance punishment. This motion was denied by the trial judge and the appellant was sentenced to ten years' imprisonment in each case, with the sentences to run concurrently.

The State then filed a writ of mandamus with this court to require the trial judge to enhance punishment pursuant to § 13A-5-6(a)(4). The writ was granted and the appellant was resentenced to twenty years' imprisonment in each case, with the sentences to run concurrently.

The appellant does not challenge the sufficiency of the evidence and thus it is unnecessary to discuss the facts of this case.

I

The appellant contends the trial judge erred by reinstating the sodomy indictment which had been nolle prossed when the appellant initially pled guilty on the burglary charge.

The entry of a nolle prosequi in a criminal case is a termination of the particular prosecution for that charge. Walker v. State, 61 Ala. 30. (1878). However, the fact that a charge has been nolle prossed does not bar further proceedings on that charge at a later time. Walker, supra; State v. Blackwell, 9 Ala. 79 (1846).

The indictment in question was nolle prossed when the appellant pled guilty to the burglary charge and prior to the empanelling of the jury. Jeopardy only attaches when a jury has been empanelled and sworn and the indictment has been read. Scott v. State, 110 Ala. 48, 20 So. 468 (1896); Elmore v. State, 445 So.2d 943 (Ala.Crim.App.1983), cert. denied, 445 So.2d 943 (Ala.1984) (defendant was not placed twice in jeopardy when his case was nolle prossed in the district court following indictment with trial thereon in the circuit court). When a case is nolle prossed before jeopardy attaches, further prosecution may be had for that same offense. Elmore, supra; Whitaker v. State, 21 Ala.App. 114, 105 So. 433 (1925); Boswell v. State, 290 Ala. 349, 276 So.2d 592 (1973).

Numerous cases have held that a person is not placed in double jeopardy when the State seeks to prosecute him on a previously dismissed charge, after his guilty plea to another charge has been vacated. See United States v. Barker, 681 F.2d 589 (9th Cir.1982); Klobuchir v. Commonwealth of Pennsylvania, 639 F.2d 966 (3rd Cir.1981); Hawk v. Berkemer, 610 F.2d 445 (6th Cir.1979); United States v. Smith, 584 F.2d 759 (6th Cir.1978); United States v. Anderson, 514 F.2d 583 (7th Cir.1975); People v. Curvin, 81 Ill.App.3d 481, 36 Ill.Dec. 734, 401 N.E.2d 575 (1980); Commonwealth v. Reider, 255 Pa.Super. 163, 386 A.2d 559 (1978); State v. Boudreaux, 402 So.2d 629 (La.1981).

These cases indicate that a court's acceptance of a guilty plea to one charge and its dismissal of other charges does not amount to an "implicit acquittal" on the dismissed charges. Hawk, supra. "[A] defendant is acquitted only when 'the ruling of a judge, whatever its label, actually represents a resolution [in the defendant's favor], correct or not, of some or all of the factual elements of the offense charged.' " Hawk, supra, at 447, quoting United States v. Scott, 437 U.S. 82, 97, 98 S.Ct. 2187, 2197, 57 L.Ed.2d 65 (1978).

In Hawk, supra, the defendant was indicted for aggravated murder, attempted murder and aggravated burglary. He pled guilty to the offense of murder, a lesser included offense of aggravated murder. The aggravated murder, attempted murder and aggravated burglary charges were then dismissed. After the defendant's guilty plea was reversed on appeal, the State sought to reinstate the charges which had been dismissed as a result of the defendant's guilty plea.

The Sixth Circuit held that the reinstatement of the aggravated murder charge would not violate double jeopardy because, when the defendant pled guilty to murder, no evidence was presented relating to the distinct elements of the offense of aggravated murder and the trial judge had made no finding of culpability on that offense. The reinstatement of the offenses of attempted murder and aggravated burglary would not constitute double jeopardy because the offenses were legally and factually distinct from the offense of murder. ¹ See also Smith, supra; Clark v. State, 294 Ala. 485, 318 So.2d 805 (1974).

Thus, reprosecution on a dismissed or nolle prossed charge does not violate double jeopardy so long as the factual elements of the dismissed charge have not been resolved. United States v. Schuster, 769 F.2d 337 (6th Cir.1985).

Further, double jeopardy does not bar reprosecution "in a case where the accused himself has terminated an inquiry into an element of culpability." Hawk, supra, at 447. Nor does it "relieve a defendant from the consequences of his voluntary choice." Schuster, supra, at 342.

The dismissal of the sodomy indictment was not an unequivocal relinquishment of the State's right to prosecute the appellant on this charge. The nolle prosequi of the sodomy indictment was conditioned upon the appellant being convicted and remaining convicted on the burglary charge. Anderson, supra. When the appellant withdrew his guilty plea to the burglary charge, the condition upon which the State agreed not to prosecute him on the sodomy charge was removed. Anderson, supra. The appellant himself, by his negotiated plea on the burglary charge, precluded the resolution of the factual elements of the sodomy charge and an inquiry into his culpability on this charge. This was a deliberate election, on the part of the appellant, to forego an adjudication of his guilt or innocence to the sodomy charge before the first trier of fact. Schuster, supra. Thus, the State was free to reprosecute the appellant on the sodomy charge once he withdrew his guilty plea on the burglary charge.

"To hold otherwise is to find that the Double Jeopardy Clause gives the defendant more than the 'benefit of his bargain' and ensures that he will not even be placed in jeopardy once under certain circumstances." Anderson, supra, at 587. See also Clark, supra.

In light of the above authorities, it is clear that the prosecution of the appellant on the sodomy charge was not prohibited by double jeopardy.

The question before this court, then, is whether the reinstatement of the sodomy indictment was a proper way to reinstate the proceedings for prosecution on this charge. Certainly, the State could have reinstated proceedings on the sodomy charge by reindicting this appellant. Section 15-8-131, Code of Alabama 1975 specifically provides that, when an indictment is quashed, the trial judge may order another indictment to be preferred for the offense charged. The trial judge in the case at bar did not choose this remedy. Instead, he chose to reinstate the sodomy indictment.

Section 15-8-71, Code of Alabama 1975 states:

"In all criminal cases in the circuit court in which a capias or warrant of arrest has issued for two terms and has been returned 'not found,' the district attorney may, by leave of the court, withdraw and file the indictment, with leave to reinstate the same when the ends of justice require such reinstatement. In all cases where a defendant is confined in one of the Alabama state hospitals under the provisions of sections 15-16-21 and 15-16-22, the district attorney may, by leave of the court, withdraw and file the indictment, with leave to reinstate the same when the ends of justice require such reinstatement."

We do not find that this statute limits the circumstances in which an indictment can be reinstated. There is nothing in the statute which indicates to this court that the reinstatement of an indictment is allowed only in the two situations set out above.

Historically, an indictment which has been dismissed or nolle prossed can be reinstated within the same term of court due to the court's inherent power to vacate and set aside their orders of judgment within the same term of court. ² United States v. Rossi, 39 F.2d 432 (9th Cir.1930); State v. Lonon, 331 Mo. 591, 56 S.W.2d 378 (1932); People v. Watson, 394 Ill. 177, 68 N.E.2d 265 (1946).

The reinstatement of an indictment, which has been unconditionally nolle prossed during one term of court, is generally precluded at a subsequent term ³ of court. State v. Veterans of Foreign Wars Post 1856, 223 Iowa 1146, 274 N.W. 916 (1937); State v. Montgomery, 276 S.W.2d 166 (Mo.1955). See generally 112 A.L.R. 383, 21 Am.Jur.2d, Criminal Law, § 513; 41 Am.Jur.2d, Indictments and Informations, § 36.

However, there is authority that permits the reinstatement of an indictment which has been nolle prossed, at any time, under special circumstances. See 41 Am.Jur.2d, Indictments and Informations, § 36. One of those special circumstances is in a situation similar to the one at bar. Barker, supra, (reinstatement of dismissed indictment for first degree murder approved after defendant withdrew her plea of guilty to second degree murder); Hawk, supra, (charges dismissed pursuant to a plea agreement could be reinstated when defendant's guilty plea to another charge was reversed on appeal); United States v. Wells, 430 F.2d 225 (9th Cir.1970) (if d...