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State v. Corliss2/25/1998
Reporter of Decisions
Decision: 1998 ME 36
Submitted on Briefs: November 10, 1997
Allen Corliss appeals from a judgment entered in the Superior Court (Cumberland County, Crowley, J.) following his jury-waived trial at which he was found guilty of operating under the influence, Class C, in violation of 29-A M.R.S.A. Section 2411(5)(D). Corliss contends that the court erred in granting the State's motion to amend the grand jury's indictment to reflect the correct date of one of his three prior OUI convictions. We affirm the judgment.
I.
On October 10, 1996, the Cumberland County Grand Jury indicted Allen Corliss for operating under the influence, Class C, in violation of 29-A M.R.S.A. Section 2411. The indictment read in pertinent part:
THE GRAND JURY CHARGES: That on or about the Eighth day of August 1996 in the Town of Freeport, County of Cumberland and State of Maine the above named defendant ALLEN CORLISS did operate a motor vehicle while under the influence of intoxicating liquor or drugs or while having 0.08% or more by weight of alcohol in his blood; the said ALLEN CORLISS having three or more convictions for Operating Under the Influence Offenses within a ten-year period, namely, on July 20, 1986 in the Bath District Court, on March 20, 1987 in the Cumberland County Superior Court and on November 20, 1989 in the Androscoggin County Superior Court.
During his trial Corliss moved to dismiss the part of the indictment charging a Class C offense because the date of the first offense alleged, July 20, 1986, was more than ten years prior to the date of the alleged current offense, August 8, 1996. The State moved to amend the indictment by replacing "July 20, 1986" with "July 20, 1989," arguing that Corliss's certified driving record showed a prior conviction on July 20, 1989, in the Bath District Court and that Corliss had been in receipt of the driving record since discovery was commenced. Corliss conceded that he was not unfairly surprised by the State's reliance on the July 20, 1989, conviction, and made no claim that his defense would be prejudiced by the amendment. The court granted the State's motion to amend.
The court entered a judgment convicting Corliss of Class C OUI and sentenced him in accordance with 29-A M.R.S.A. Section 2411(5)(D). Corliss filed an application to this Court to allow an appeal of his sentence pursuant to Maine Rule of Criminal Procedure 40(b), which was denied. This appeal followed. II.
Pursuant to Maine Rule of Criminal Procedure 7(e), the State may amend an indictment as to form. Any substantive change requires resubmission of the indictment to the grand jury. See State v. Larrabee, 377 A.2d 463, 465 (Me. 1977); State v. Hathorne, 387 A.2d 9, 11 (Me. 1978) (explaining that to amend the indictment in substance without resubmitting it to the grand jury may violate Article I, Section 7 of the Maine Constitution). A substantive amendment is one that "change the nature or grade of the offense charged." State v. Mottram, 155 Me. 394, 400, 156 A.2d 383, 387 (1959) (quotations omitted). If the change in an indictment does not alter any fact that must be proved, the amendment is formal. See Larrabee, 377 A.2d at 465.
The averment of time in an indictment is altogether formal, unless the time itself is a legal constituent of the offense. See Mottram, 155 Me. at 402, 156 A.2d at 387 (quotations omitted). When the State charges a crime enhanced by prior convictions of specified crimes, as it did in this case by charging Corliss with Class C OUI in violation of 29-A M.R.S.A. Section 2411, the prior convictions are an essential element of the crime
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