REL 05/29/2009 ALEXANDER
Notice: This opinion is subject to formal revision before publication in the advance
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Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
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before the opinion is printed in Southern Reporter.
ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 2008-2009
_________________________
CR-08-0408
_________________________
State of Alabama
v.
Oran Leslie Alexander
Appeal from Montgomery Circuit Court
(CC-08-1377)
KELLUM, Judge.
The State of Alabama appeals from the circuit court's
dismissal of one count of a two-count indictment. See Rule
15.7, Ala. R. Crim. P.
Oran Leslie Alexander was indicted on
October 10, 2008, by a Montgomery County grand jury for one
CR-08-0408
count of fraudulent use of a debit card, a violation of § 13A9-14(b), Ala. Code 1975, and one count of theft of property in
the second degree, a violation of § 13A-8-4, Ala. Code 1975.
Count II of the indictment, charging Alexander with theft of
property in the second degree, provided:
"Oran Leslie Alexander, alias, ... whose name is
otherwise unknown to the Grand Jury, did knowingly
obtain or exert unauthorized control over a debit
card, a better description of which is unknown to
the Grand Jury, the property of Sean Thorn, of some
value in excess of $500.00 dollars, with the intent
to deprive the owner of the property, in violation
of section 13A-8-4 of the Code of Alabama, against
the peace and dignity of the State of Alabama."
On
December
9,
2008,
Alexander
appeared
before
the
circuit court to plead guilty to the offenses charged in the
indictment and to enroll in the pretrial-diversion program.
During the guilty-plea proceedings, the State averred that the
evidence would show that Alexander purchased less than $500
worth of gasoline using his roommate's debit card without the
roommate's permission.
After the State offered a factual
basis for the second count of the indictment, defense counsel
moved for the dismissal of the charge of theft of property in
the second degree on the ground that the indictment misstated
the value of the property by stating "some value in excess of
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CR-08-0408
$500.00 dollars." Defense counsel argued that the amount of
goods purchased on the victim's debit card actually totaled
less than $500. The circuit court subsequently dismissed the
second count of the indictment charging Alexander with theft
of property in the second degree, finding the second count of
the indictment "faulty."
The State contends on appeal that the circuit court erred
in dismissing the second count of the complaint charging
Alexander with theft of property in the second degree because,
it argues, the alleged dollar value for the debit card that
appeared in the indictment was mere surplusage and did not
prejudice Alexander.
Alexander concedes that the State's
contention is correct.
Alexander's case involves only issues of law and the
application of the law to the undisputed facts. Thus, our
review is de novo. See, e.g., Ex parte Key, 890 So. 2d 1056,
1059 (Ala. 2003); State v. Hill, 690 So. 2d 1201, 1203-04
(Ala. 1996); State v. Otwell, 733 So. 2d 950, 952 (Ala. Crim.
App. 1999).
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CR-08-0408
Alexander was charged in Count II of the indictment with
theft of property in the second degree as defined in § 13A-84; that Code section provides, in pertinent part, as follows:
"(a) The theft of property which exceeds five
hundred dollars ($500) in value but does not exceed
two thousand five hundred dollars ($2,500) in value,
and which is not taken from the person of another,
constitutes theft of property in the second degree.
"....
"(c) The theft of a credit card or a debit card,
regardless of its value, constitutes theft of
property in the second degree."
§ 13A-8-4, Ala. Code 1975.
The
State
acknowledges
that
the
inclusion
of
the
allegation that the amount charged to the debit card
in
excess of $500 was incorrect. However, the State argues that
the inclusion of that language does not warrant the dismissal
of count II of the indictment. We agree.
Rule
13.2(d),
"[u]nnecessary
Ala.
allegations
R.
[in
Crim.
an
P.,
states
indictment]
may
that
be
disregarded as surplusage, and, on motion of the defendant,
shall be stricken by the court if prejudicial or prolix."
This
Court
averments
has
in
an
repeatedly
indictment
recognized
do
4
not
that
impair
"'unnecessary
its
validity,
CR-08-0408
although they may hold the prosecution to proof of them.'"
Rogers
v.
State,
539
So.
2d
451,
453
(Ala.
Crim.
App.
1988)(quoting Johnson v. State, 405 So. 2d 149, 153 (Ala.
Crim. App. 1981)). "'As long as the remaining portions of the
indictment validly charge a crime, the existence of surplusage
in
the
indictment
will
not
effect
the
validity
of
the
conviction.'" Rogers, 539 So. 2d at 453 (quoting Johnson, 405
So. 2d at 153).
In Johnson v. State, 460 So. 2d 244 (Ala. Crim. App.
1984), the defendant was convicted of robbery in the first
degree.
On appeal, he challenged, among other things, the
indictment, arguing that it was so unclear that it did not
sufficiently apprise him of what he was being called upon to
defend. 460 So. 2d at 247. The indictment charged that the
defendant "'did in the
course
of
committing a theft of
cigarettes, the specific determination(s) of said currency
being unknown to the Grand Jury, of the approximate aggregate
value
of
one
hundred
eight
four
dollars
($184.00)....'"
Johnson, 460 So. 2d at 247. The defendant argued that the
reference to the theft of cigarettes followed by a statement
that the "specific denomination of said currency" raised the
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CR-08-0408
question of whether
he
was being charged
cigarettes
of
money.
or
theft
Id.
with theft
Recognizing
that
of
the
language in the indictment was faulty, this Court held that
the objectionable portion of the indictment was immaterial in
a charge of robbery. This Court concluded that, excluding the
faulty language, so long as the remaining portions of the
indictment were valid, the existence of the surplusage in the
indictment did not affect the validity of the conviction. 460
So. 2d at 247.
In the instant case, the inclusion in the indictment of
the statement "of some value in excess of $500.00 dollars" was
mere surplusage, given the remaining allegations contained in
the indictment. The indictment alleged that Alexander obtained
or exerted unauthorized control over a debit card with the
intent to deprive the owner of the property. This allegation
alone is sufficient under § 13A-8-4(c) to sustain the charge
of theft of property in the second degree. Further, Alexander
was not prejudiced by the inclusion of the surplusage in the
indictment.
Based on the foregoing, the circuit court erroneously
granted Alexander's motion to dismiss the second count of the
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CR-08-0408
indictment.
Accordingly,
we
reverse
the
circuit
court's
judgment and remand this case for proceedings consistent with
this opinion.
REVERSED AND REMANDED.
Wise, P.J., and Welch and Windom, JJ., concur.
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