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State v. Corliss2/25/1998
charged. See Landry v. State, 575 A.2d 315, 316-317 (Me. 1990). An indictment must allege every element of the offense charged. See State v. Weese, 662 A.2d 213, 214 (Me. 1995); cf. 15 M.R.S.A. Section 757(1) (1980 & Supp. 1997) (" prior conviction shall be specially alleged if the sentencing provision of any crime requires that a present sentence be enhanced because the defendant has been previously convicted of a specified crime. . . .").
In this case, the indictment against Corliss properly alleged that "the said ALLEN CORLISS three or more convictions for Operating Under the Influence Offenses within a ten-year period . . . ." Although the State must prove at trial the exact dates of the prior convictions to substantiate the general averment in the indictment, the exact dates need not be set forth in the indictment. See State v. Brooks, 656 A.2d 1205, 1207-08 (Me. 1995) (general averment as to the existence of the prior convictions is sufficient, where averment adequately apprised defendant of the act charged). Thus, the indictment against Corliss, both before and after the amendment, contained every element necessary to charge him with Class C OUI in violation of section 2411. Indeed, the original indictment adequately charged Corliss with Class C OUI; the State's motion to amend the indictment was unnecessary. An amendment that relates solely to surplusage, such as the exact dates of Corliss's prior convictions, is formal. See State v. Siviski, 663 A.2d 568, 570 (Me. 1995) (surplusage is language which neither adds nor detracts from the charging instrument, and is not necessary to define the conduct complained of as the crime) (citing 1 Cluchey & Seitzinger, Maine Criminal Practice Section 7.10 at III-46).
An amendment as to form is permissible if it results in no prejudice to the defendant. See Hathorne, 387 A.2d at 12. Corliss conceded at trial that the State's reliance on the July 20, 1989, conviction did not unfairly surprise him, and he has made no claim that it unfairly prejudiced his defense. In these circumstances, we conclude that the court did not err in granting the State's motion to amend the indictment to reflect the correct date of Corliss's prior conviction.
The entry is:
Judgment affirmed.
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