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Tucker v. State11/30/2001
provisions could argue that his or her conviction was void because a `material or essential element' of the offense was not included in the indictment. When a material element is omitted from an indictment a conviction is due to be vacated and jurisdictional issues are not subject to waiver and may be raised at any time. See Ex parte Harper, 594 So. 2d 1181 (Ala. 1991).
Neither are jurisdictional issues subject to a harmless error analysis. We also believe that the Apprendi holding implies that the failure to allege in the indictment the location of the crime does not affect the validity of the indictment, i.e., does not rise to the level of a jurisdictional defect. Had the defect in Apprendi amounted to a jurisdictional defect that would invalidate the indictment, a reviewing court would, ex mero motu, be charged with noticing the defect. See Ex parte Hargett, [Ms. CR-98- 0956, July 2, 1999] ___ So. 2d ___ (Ala.Crim.App. 1999). The Supreme Court did not hold in Apprendi that the underlying conviction was due to be vacated." (Footnotes omitted; emphasis added.) The amendment to Tucker's indictment merely added the location of the crime, which was surplusage; it need not have been alleged in the indictment at all, and it did not add a material element to the crime with which she was charged. Therefore, Tucker's argument is without merit, and the trial court correctly granted the State's motion to amend the indictment over Tucker's objection. Additionally, Tucker argues that, pursuant to § 15-18-8, Ala. Code 1975, as amended, the trial judge had the authority to suspend the five- year sentence imposed pursuant to § 13A-12-250. The State agrees. While Tucker's appeal was pending, this Court decided the case of Soles v. State, [Ms. CR-00-1429, September 28, 2001] ___ So. 2d ___, ___ (Ala. Crim. App. 2001), in which we held "that the newly amended § 15-18-8 allows a trial judge to suspend a sentence imposed upon application of the school/housing enhancements." During Tucker's sentencing hearing, the trial judge, like the trial judge in Soles, maintained that he would have split Tucker's five-year sentence imposed pursuant to § 13A-12-250 if he could have, stating: "[Prosecutor, defense counsel,] and Ms. Tucker, were I convinced that Title 15-18-8 as amended last summer, were I convinced that it authorized me to impose a split sentence in your case, a split sentence if you will on the school enhancement portion of your case, I would do so. I would do that. ... [If t]he circumstances change in the future you let me know and I will reconsider sentence. I hope you will give a look at it and they will give us discretion in these matters. Many of the folks that have been convicted in here I would sentence to the penitentiary for selling drugs. But there have been a number of cases where I would like to have had discretion in this matter. And this is certainly that type of case." (R. 212-23.)
We remand this cause as we did in Soles because, although the trial judge imposed a sentence within the statutory range for Tucker's convictions for unlawful distribution of a controlled substance, the trial judge unequivocally stated on the record that he would have imposed a different sentence if he had had the authority to do so. We remand this cause to allow the trial judge to resentence Tucker in accordance with the appropriate statutory provisions and with this opinion. Due return shall be made to this court within 42 days of the release of this opinion.
REMANDED WITH DIRECTIONS.
McMillan, P.J., and Baschab and Wise, JJ., concur. Cobb, J., dissents, with opinion, which Shaw, J., joins.
COBB, Judge (dissenting).
Although I agree that the trial court should be
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