Today the Court of Criminal Appeals released new decisions. The two most notable decisions involved amendments to the charges in the indictment or complaint. Charging documents—such as indictments or complaints—serve a critical constitutional purpose in that they put the defendant on notice of the charges against them. Sometimes, however, there are issues—both significant and insignificant—with the charging document. When this happens, Rule 13.5 of the Alabama Rules of Criminal Procedure comes into play.
Rule 13.5 allows for the amendment of a charge under certain circumstances:
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
Basically, this means that if the parties consent, the court can make certain changes. If the defendant doesn’t consent, then the court can make changes as long as new or different charges are not added and the changes do not have a meaningful effect on the defendant’s rights.
In Hammock v. State, CR-2024-0333 (Ala. Crim. App. November 8, 2024), and State v. Shiver, CR-2023-0604 (Ala. Crim. App. November 8, 2024), the Court of Criminal Appeals rejected arguments that the trial courts had unlawfully amended the charges. A key feature for both of these cases was whether the amendment added new or different charges.
One of Hammock’s charges was for obstructing governmental operations by—among other things—resisting arrest. The trial court amended the charge by removing the resisting arrest language from the charge. On appeal, the Court of Criminal Appeals explained that this amendment didn’t change the alleged crime, it only removed one of multiple means of proving the same crime. When an indictment alleges multiple theories for how a defendant committed a crime, the State isn’t required to prove all of them as long as they prove one of them. Therefore, the amendment in Hammock did not change the original charge.
Shiver was charged with DUI under § 32-5A-191(a)(5) in the district court. Just prior to trial, the State sought to amend the charge to § 32-5A-191(a)(2) and the district court agreed. After she was convicted in the district court, Shiver appealed to the circuit court, where the charge was dismissed because of the amendment at the district court. The circuit court did so because it believed the amendment impermissible changed the offense and affected Shiver’s rights. The State appealed that dismissal and the Court of Criminal Appeals reversed.
The Court of Criminal Appeals explained that the subsections of § 32-5A-191(a) each establish different ways of proving the same crime—driving under the influence. When the State amends to a different subsection, the charge itself doesn’t change—only the manner of proving it. Therefore, the amendment didn’t add new or different charges.
Furthermore, Shiver’s rights were not prejudiced by the amendment because she appealed to the circuit court for trial de novo. This means that Shiver asked for a complete do over in the circuit court—where she could have a jury. This essentially resets the case to the beginning. And because the charge was amended in the district court and the amended charge was what was appealed to the circuit court, Shiver had plenty of notice of the charge in the circuit court.
What these two cases demonstrate is that when the State seeks to amend a charging document that involves an offense that can be proven in multiple ways, as long as the change doesn’t substantively change the nature of the offense to create new or different charges, the trial court can allow the amendment as long as the change doesn’t affect the defendant’s rights.
