Tinsley v. StateTinsley v. State
In 1980, the Elmore County Grand Jury charged that Tyrone Tinsley “did escape, or attempt to escape from a penal facility, to-wit: Draper Correctional Center, in violation of §
Upon appeal of his conviction Tinsley was provided with an appointed attorney who filed a “no merit letter” with this court on June 23, 1983. Tinsley‘s conviction was affirmed without opinion on October 4, 1983. In 1985, Tinslеy petitioned the trial court for a writ of error coram nobis alleging, inter alia, that he was entitled to an out-of-timе appeal due to the failure of counsel to file a brief on appeal. See Longmire v. State, 443 So.2d 1265 (Ala. 1982); Peterson v. State, 428 So.2d 201 (Ala.Cr.App. 1983). See also Mylar v. Alabama, 671 F.2d 1299 (11th Cir. 1982), cert. denied, 463 U.S. 1229, 103 S.Ct. 3570, 77 L.Ed.2d 1411 (1983).
The trial court granted the writ, Tinsley filed an out-of-time appeal, and he is now before this court with another appointed attorney. Counsel hаs filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), maintaining that there are no errors in the record. We disagree, and find that Tinsley‘s esсape conviction must be reversed.
Insofar as the indictment to which Tinsley pled purports to charge the crimе of escape in the first degree, it is fatally defective. Section
“(a) A person commits the crime of escape in the first degree if:
. . . .
(2) Having been convicted of a felony, he escapes or attempts to escape from custody imposed pursuant to that conviction.
(b) Escape in the first degree is a Class B felony.”
The indictment is flawed because it fails to track the languagе of subsection (a)(2) of the statute. It omits the all-important element of first degree escape which distinguishes that crime from escape in the second or third degrees, i.e. that the accused, “[h]aving been convicted of a felony,” escaped. Compare Ex parte Behel, 397 So.2d 163 (Ala. 1981); Jacques v. State, 409 So.2d 876 (Ala.Cr.App. 1981), aff‘d, 409 So.2d 885 (Ala. 1982) (construing indictments under former law of escape in the first degree,
Although the Behel and Jacques cases are not direct support for our holding that the fact of a defendant‘s underlying conviction must be alleged in an indictment under §
“Whereas previous law provided a helter-skelter treatment of escaрe, the Criminal Code sections are based on two factors: (1) use of force, and (2) the seriousness of the crime that led to detention. Under this scheme, the lowest gradе of escape is a simple escape from custody (§
13A-10-33 ). The grade is raised (§13A-10-31 ) where at least one of the following elements is рresent: (a) the escapee used force or a deadly weapon, (b) the escapee was a convicted felon, or (c) the escapee wаs from a prison, jail, or like facility.”
The commentary to the escape statutes makes it clear that the legislаture intended the fact of a prior conviction to be an essential element of escape in the first degrеe. Compare Model Penal Code and Commentaries § 242.6 (4)(a) (1980) (providing for a higher grade of escape if the accused has been arrested, charged, or cоnvicted of a felony);
“If the indictment is framed under a statute which defines the offense created, and prescribes its constituents, it must allege in the words of the statute or other words equivalent in meaning, all the statutory elements which are essentially descriptive of the offense.” Barbee v. State, 417 So.2d 611, 612-13 (Ala.Cr.App. 1982) (quoting Holt v. State, 86 Ala. 599, 600, 5 So. 793 (1888)). The indictment in the case before us omits an essential statutory element of the offense and it is, therefore, void insofar as it purports to charge escape in the first degree.
While a guilty plea waives all nonjurisdictional defects in the prior proceedings against a defendant, Dingler v. State, 408 So.2d 530 (Ala. 1981), a void indictment gives the court no jurisdiction to proceed against an accused and the defect of an indictment which fаils to charge an offense is not waived by a plea of guilty, United States v. Meacham, 626 F.2d 503 (5th Cir. 1980), on remand sub nom., United States v. Hayes, 676 F.2d 1359 (11th Cir.), cert. denied, 459 U.S. 1040, 103 S.Ct. 455, 74 L.Ed.2d 608 (1982).
But for the miscitation of §
The judgment of conviction is reversed and the cause remanded to the Elmore Circuit Court.
REVERSED AND REMANDED.
All Judges concur.