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Hopper v. City of Prattville2/4/2000
rial court's jury instructions, combined with the general verdict form given to the jury, effectively resulted in two additional charges being levied against Hopper during his trial. (Issue I in Hopper's brief to this court.)
On the UTTC charging Hopper with DUI, the block next to the line reading "while ... nder the influence of controlled substance" was checked. (C. 10.) However, on the portion of the UTTC listing the Code section violated, "§ 32-5A-191(a)(2), Ala. Code 1975," was written. Section 32-5A-191(a)(2), Ala. Code 1975, defines DUI as driving or being in actual physical control of any vehicle "while under the influence of alcohol." Hopper was convicted in the district court of driving or being in actual physical control of any vehicle while under the influence of a controlled substance, a violation of § 32-5A-191(a)(3), Ala. Code 1975. When Hopper appealed to the circuit court for a trial de novo, the prosecutor filed a solicitor's complaint correcting the miscitation on the UTTC and charging Hopper with "driv or hav under his actual physical control a motor vehicle while under the influence of a controlled substance, in violation of Section 32-5A-191(a)(3) Of the Code of Alabama, as amended." (C. 12.) Hopper subsequently filed a motion to dismiss the DUI charge in the circuit court on the ground that the UTTC was fatally defective and that it had been improperly amended by the solicitor's complaint. Hopper's motion to dismiss was denied. It appears that the trial court held a hearing on the motion before denying it, but a transcript of that hearing is not included in the record on appeal.
Initially, we note that Hopper's contention that the UTTC failed to apprise him of the charge against him because it miscited the Code section is not preserved for review. Although Hopper contends that he objected to the UTTC at the district-court level, there is no evidence in the record before us that such an objection was made. "It is the appellant's duty to provide this court with a complete record on appeal." Knight v. State, 621 So. 2d 394, 395 (Ala.Cr.App. 1993). "Where the record is silent, we will not hold that the trial court erred." Id. Because there is nothing in the record showing that Hopper objected to the UTTC until he filed his motion to dismiss in the circuit court, he is deemed to have waived any irregularities in the UTTC. See Hosmer v. City of Mountain Brook, 507 So. 2d 1038 (Ala.Cr.App. 1987).
However, even assuming for the sake of argument that this issue was preserved for review, we would still decide it adversely to Hopper. It is well settled that " warrant does not require the same particularity which is demanded in indictments." City of Dothan v. Holloway, 501 So. 2d 1175, 1176-77 (Ala.Cr.App. 1986). Even the "incorrect citation of a Code section does not void an indictment which otherwise states an offense." Royer v. State, 542 So. 2d 1301, 1303 (Ala.Cr.App. 1988). Because the "`mere inclusion of the applicable Code section in a charging instrument is sufficient "to put the defendant on notice that he charged with violation of any provable part of the statutory provision,"'" id., the reference to a statutory source in an indictment is considered a "`"matter of convenience and not of substance."'" Griffin v. State, 428 So. 2d 213, 215 (Ala.Cr.App. 1983). It is the language describing the offense that apprises the accused of the charge against him, not the Code citation. Because Corp. Fells checked the line on the UTTC describing the offense of driving while under the influence of a controlled substance, Hopper was sufficiently put on notice of the charge against him. " ny miscitation of the applicable Code section [in the UTTC] was `mere surplusage.'" Be
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