Summary
holding that, even with the defendant's consent, an indictment could not be amended to change the charge of burglary to a charge of receiving stolen property
Summary of this case from Hulsey v. StateOpinion
CR-92-0156.
May 7, 1993.
Appeal from the Circuit Court, Russell County, Paul Miller, J.
C. Kerry Curtis, Phenix City, for appellant.
James H. Evans, Atty. Gen., and Margaret Childers, Asst. Atty. Gen., for appellee.
Johnny Kenneth Green was indicted for the offense of burglary in the first degree. With the appellant's consent, the indictment was amended to charge the offense of receiving stolen property in the second degree. The appellant pleaded guilty to this offense.
The State has filed a motion to remand this cause to the trial court, arguing that an indictment cannot be amended to charge an offense that is not a lesser included offense of the crime charged in the indictment. The State's motion is well taken. The offense of receiving stolen property is not a lesser included offense of burglary. Crews v. State, 40 Ala. App. 306, 112 So.2d 805 (1959). The indictment, therefore, was improperly amended. See Rule 13.5(a), A.R.Crim.P. The appellant could not consent to an improper amendment. Ross v. State, 529 So.2d 1074 (Ala.Crim.App. 1988). The conviction for receiving stolen property must be set aside.
The judgment is reversed and the cause is remanded to the trial court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
All the Judges concur.