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Hopper v. City of Prattville2/4/2000
xley v. State, 705 So. 2d 549, 552 (Ala.Cr.App. 1997). See also Ex parte Bush, 431 So. 2d 563, 564 (Ala.), cert. denied, 464 U.S. 865, 104 S.Ct. 200, 78 L.Ed.2d 175 (1983).
Because the UTTC charged Hopper with driving while under the influence of a controlled substance, the solicitor's complaint also charging Hopper with driving while under the influence of a controlled substance, but citing the correct Code section, was not, as Hopper contends, an improper amendment to the UTTC. 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."
(Emphasis added.) This court has held that " nder this rule, an offense is `different' from the charged offense if it is not contemplated or included in the offense alleged in the original complaint or indictment." Bexley, 705 So. 2d at 551. The solicitor's complaint, which charged Hopper with driving while under the influence of a controlled substance, added nothing new or different to the UTTC, which also charged Hopper with driving while under the influence of a controlled substance; it merely cited the correct Code section. This was not an amendment charging an "additional or different offense." Thus, Hopper's argument that the solicitor's complaint improperly amended the UTTC is not well taken.
However, we agree with Hopper's contention that the trial 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; thus, we must reverse Hopper's conviction for driving under the influence .
The record reveals that the trial court improperly instructed the jury on three different kinds of DUI. The trial court instructed the jury that it could find Hopper guilty of driving while under the influence of alcohol, see § 32-5A-191(a)(2), Ala. Code 1975, driving while under the influence of a controlled substance, see § 32-5A-191(a)(3), Ala. Code 1975, or driving while under the combined influence of alcohol and a controlled substance, see § 32-5A-191(a)(4), Ala. Code 1975. Because Hopper was actually charged only with violating § 32-5A-191(a)(3), Ala. Code 1975 -- i.e., driving while under the influence of a controlled substance -- the trial court's instructions that the jury could find Hopper guilty under the two other methods of DUI were erroneous. See Royster v. City of Montgomery, 470 So. 2d 1348, 1350 (Ala.Cr.App. 1985) ("trial judge erred in charging the jury on the offense of driving under the influence of a controlled substance and the offense of driving under the influence of a combination of a controlled substance and alcohol" where defendant was charged only with driving under the influence of alcohol).
The error in the trial court's jury instructions was compounded by the general verdict form given to the jury. Regarding the DUI conviction, the jury returned the following verdict:
"Guilty Verdict -- DUI CC-98-222
"We the jury find the Defendant, David Leslie Hopper, guilty of the offense of DUI. [Driving Under the Influence]."
(C. 39.)
The trial court's erroneous jury instructions, combined with the general verdict form, make it impossible for a reviewing court to determine which subsection of § 32-5A-191, Ala. Code 1975, the jury ac
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