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619 So. 2d 952

Green v. State

Court of Criminal Appeals of Alabama

Decided May 7, 1993

Court of Criminal Appeals of Alabama · decided 1993-05-07

Key passage — most relied on by later courts

“"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."”

quoted by 2 later decisions, including Murray v. State, 675 So. 2d 532 - Long v. State

Relies on 529 So. 2d 1074 - Ross v. State · 40 Ala. App. 306 - Crews v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1993-05-07

How this case has been cited

Cited by 29 later decisions — most recently July 2015 · most notably Ex Parte Cole (2002), 675 So. 2d 532 - Long v. State (1996)

29 state decisions

180199320002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1

¶2Johnny 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 *953 of receiving stolen property in the second degree. The appellant pleaded guilty to this offense.

¶3The 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.

¶4The judgment is reversed and the cause is remanded to the trial court for further proceedings consistent with this opinion.

¶5REVERSED AND REMANDED.

¶6All the Judges concur. *1267

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