Hamilton v. State3/1/2002
n municipal court).'" Dutton v. State, [Ms. CR-00-0301, June 29, 2001] ___ So. 2d ___, ___ (Ala.Crim.App. 2001). The circuit court had no jurisdiction to act on the indictment. All action in the circuit court was void for lack of subject- matter jurisdiction.
Hamilton argues that he consented to the first amendment and that, therefore, it was valid. However, he contends that the subsequent amendment, made over his objection, renders the second indictment void. Although, Hamilton consented to the amendment, a defendant cannot consent to waive a jurisdictional defect in the proceedings against him. "The lack of subject matter jurisdiction is not waivable and may be raised at any time by the suggestion of a party or by a court ex mero motu." Greco v. Thyssen Mining Constr., Inc., 500 So. 2d 1143, 1146 (Ala.Civ.App. 1986). "The lack of subject matter jurisdiction or the failure of the charge to state an offense may be raised by the court or by motion of the defendant at any time during the pendency of the proceeding." Rule 15.2(d), Ala.R.Crim.P.
Neither may a party consent to amend an indictment to an offense that is not included in the indictment. Rule 13.5, Ala.R.Crim.P., states:
"(a) Amendment of Charge. 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.)
An indictment includes all lesser-included offenses and may be amended to charge a lesser offense. However, an indictment may not be amended, even with the consent of a defendant, to charge a greater or different offense. See Rule 13.5, Ala.R.Crim.P. "An indictment can not be amended to charge an offense that was not encompassed in the original indictment." Hall v. State, 655 So. 2d 51 (Ala.Crim.App. 1995).
Here, the circuit court had no jurisdiction to rule on any motion concerning the misdemeanor indictment, much less, to amend the indictment to charge a greater offense. For the reasons, stated above, all action in the circuit court is hereby set aside and held for naught. "' f a court ha no jurisdiction, its action is void.'" Moore v. State, 596 So. 2d 53, 54 (Ala.Crim.App. 1991), quoting State v. Johns, 142 Ala. 61, 38 So. 755, 755 (1905).
However, the original indictment returned against Hamilton was not void -- it charged the misdemeanor offense of driving under the influence of alcohol. There is a valid indictment still in force against Hamilton. This indictment vested jurisdiction of the case in the district court. The void proceedings in circuit court did not affect the validity of the misdemeanor indictment.
"Because the trial court's actions were void, there is no judgment to support an appeal." Carpenter v. State, 782 So. 2d 848, 850 (Ala.Crim.App. 2000), citing McKinney v. State, 549 So. 2d 166, 168 (Ala.Crim.App. 1989). Therefore, this appeal is due to be, and is hereby, dismissed.
JUDGMENT OF CIRCUIT COURT VACATED; APPEAL DISMISSED.
McMillan, P.J., and Cobb, Baschab, and Wise, JJ., concur.
Shaw, J., concurs in result.
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