Witcher v. State, 3 Div. 486
| Decision Date | 29 June 1982 |
| Docket Number | 3 Div. 486 |
| Parties | Sandra Faye WITCHER v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Appellant was indicted for illegal possession of, or fraudulent use of a credit card, pursuant to § 13A-9-14, Code of Alabama 1975, as amended. After a jury trial she was found guilty and sentenced to fifteen years.
Appellant's brief was due on February 19, 1982, but it was not filed until March 30, 1982, five and one-half weeks late. Based on A.R.A.P. 45B, this court affirmed appellant's conviction without opinion, 418 So.2d 983. Rule 45B, effective January 1, 1982, provides the following:
"In all cases appealed to the Court of Criminal Appeals, except those in which the death penalty has been imposed, the Court of Criminal Appeals shall consider only questions or issues presented in briefs on appeal."
Appellant's brief in support of her application for rehearing was timely filed, and in an effort to afford appellant a review on the merits of her case, we have determined to issue an opinion on rehearing. We emphasize, however, that henceforward the words "briefs on appeal" as used in Rule 45B, shall be deemed to mean "timely-filed briefs."
Taken in the light most favorable to the State, the evidence proved that appellant, while an employee of Mini-Maid, a housekeeping service in Montgomery, cleaned the apartment of Janet Lynn Reilly on January 20, 1981. Appellant did not show up for work after that date. Subsequently, Ms. Reilly received bills for charges made on her Mastercharge credit card in Uniontown, Alabama and Houston, Texas. She did not make the charges or authorize anyone else to use her credit card. Ms. Reilly stated that she knew the card in question was on the desk in her apartment the day Mini-Maid came to clean because she had just received a new card to replace her expired card. She remembered leaving the expired card on her desk.
Appellant took the stand and admitted cleaning Ms. Reilly's apartment, and being in Houston, Texas during January of 1981. She also admitted that she had been previously convicted of forgery. She denied taking or using Ms. Reilly's credit card.
Montgomery Police Officer E.V. Spivey testified that on May 13, 1981, he stopped a vehicle being driven by appellant because the car had no tag or brake lights. He subsequently arrested appellant for driving under the influence, impounded the vehicle and inventoried its contents. In the glove compartment Spivey found a Mastercharge card bearing the name of Janet Lynn Reilly.
Corporal L.M. Mears of the Montgomery Police Department said that after informing appellant of her Miranda rights he took an oral statement from her in which she admitted that she knew the credit card was in the vehicle.
Appellant argues that it is no crime to possess an expired credit card because the instrument has no value, and for that reason, her motion to exclude the State's evidence should have been granted.
Section 13A-9-14, supra, provides the following:
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