Opinion
No. CR-01-1706.
Decided June 27, 2003. Rehearing Denied August 22, 2003.
Appeal from Mobile Circuit Court (CC-99-533), Robert G. Kendall, J.
Kenneth A. Nixon, Mobile; and Joseph D. Quinlivan, Jr., Mobile, for appellant.
William H. Pryor, Jr., atty. gen., and James B. Prude, asst. atty. gen., for appellee.
The appellant, Wayne Zimlich, pleaded guilty and was convicted of perjury in the second degree, a violation of § 13A-10-102, Ala. Code 1975. He was sentenced to one year's imprisonment; that sentence was split and he was ordered to serve 60 days' imprisonment, and two years on probation. He was required, as a condition of his probation, to surrender to the Alabama Board of Nursing his nursing license for the two years of his probation. The trial court further ordered Zimlich to refrain from practicing as a nurse or nurse anesthetist in Alabama or any other state during the probationary period. Zimlich was ordered to pay $25 to the victims compensation fund and to pay assessed court costs.
This case has a complicated history, which we briefly recount in order to accurately characterize the issues and the procedural posture of this case. See Ex parte Zimlich, 796 So.2d 394 (Ala.Crim.App. 1999), writ of mandamus set aside by State v. Zimlich, 796 So.2d 399 (Ala. 2000).
In 1993, a female patient died during surgery to remove her gallbladder. Her family filed a medical-malpractice action against Zimlich, a registered nurse anesthetist, and his supervising physicians, alleging that they had negligently caused the death of the patient; that case was tried in the Mobile Circuit Court in October 1995. Zimlich, who had been present during the operation and who had administered various medications, testified during the trial of the medical-malpractice case. In November 1997, Zimlich sued his insurance company alleging that it had acted in bad faith in failing to settle the malpractice claim against him. He was awarded $15,000 against the insurance company. In the trial of his claim against the insurer, he alleged that he had been coerced by the insurance company and its employees, the doctor who employed him, and the defense attorney representing the insurance company, into giving false testimony at the malpractice trial.
In June 1998, the grand jury for Mobile County indicted Zimlich for perjury. The indictment read:
"WAYNE ZIMLICH, whose name is to the Grand Jury otherwise unknown than as stated, did, on or about October 9, 1995, after having been sworn to tell the truth, knowingly testified under that oath in an official proceeding, to-wit: a jury trial in the Circuit Court of Mobile County, Alabama as follows:
"'Q. And according to the [EKG (echocardiogram)] monitor this period, this second episode of bradycardia and hypotension would have lasted for what period of time?
"'A. About three minutes from the time it went down below like forty-three and I started to treat it until she responded to the drugs.'
"That said Wayne Zimlich did, on or about November 3, 1997, after having been sworn to tell the truth, knowingly testified under that oath at an official proceeding, to-wit: a jury trial in the Circuit Court of Mobile County, Alabama as follows:
"'Q. Page eighty-one, I'll read this, starting at line four (of a prior deposition of Wayne Zimlich), question: is it your testimony that the bradycardia in the second episode lasted three to five minutes[?]
"'A: Yes
"'Q: Is it your testimony that Ms. McGahagin would not have been bradycardic for longer than three to five minutes?
"'A: Correct, severe sinus bradycardia for longer than three to five minutes.
"'Q. That was a lie?
"'A. That was what we had decided we were going to say and that was not the truth.
"'Q. That's not the truth?
"'A. That's correct.
"'. . . .'
"That said Wayne Zimlich having knowingly made each said statement, one of the other of which is false and not believed by the said Wayne Zimlich to have been true when made, in violation of Section 13(A)-10-101, of the Code of Alabama against the peace and dignity of the State of Alabama."
Zimlich filed a motion to dismiss the indictment, arguing that it failed to allege the offense of perjury in the first degree because it made no allegation that the alleged perjurious statement was "material." In 1998, the trial court granted Zimlich's motion. In January 1999, the State re-indicted Zimlich for first-degree perjury. The indictment read as follows:
"The GRAND JURY of the County charge, that before the finding of this indictment, WAYNE ZIMLICH whose name is to the Grand Jury otherwise unknown than as stated, and, or on about October 9, 1995, during his examination as a witness after having been duly sworn to testify truthfully in the trial of JAMES R. McGAHAGIN, et al., vs. DR. ANTHONY SAVOIE, et al., CV-93-1571, in the Circuit Court of Mobile County, Alabama a jury trial alleging medical malpractice, which said court had authority to administer such oath, swear as follows:
"Q. And according to the EKG monitor this period, this second episode of bradycardia and hypotension would have lasted for what period of time?
"A. About three minutes from the time it went down below like forty-three and I started to treat it until she responded to the drugs, and the matter so sworn to being material to a determination of whether or not there had been medical malpractice; and,
"That said WAYNE ZIMLICH did, on or about November 3, 1997, during his examination as a witness and after having been duly sworn to testify truthfully in the trial of WAYNE ZIMLICH vs. ST. PAUL FIRE MARINE INSURANCE COMPANY, et. al., CV-96-2441, in the Circuit Court of Mobile County, Alabama, a jury trial alleging bad faith, negligence or wanton failure to settle an insurance claim, which said court had authority to administer such oath, swear as follows:
"Q. All right. Did you testify at trial?
"A. Yes.
"Q. And did you testify truthfully at trial?
"A. No.
"Q. Tell us what you said during trial that wasn't truthful?
"A. I stayed with the defense that I have been told to put forward, that the record was compressed, that it was only three to four minutes, or four to five minutes. I don't remember whether I was ever asked about Savoie, but basically it was trying to defend that time period, "and the matter so sworn to being material to a determination of whether or not there had been bad faith, negligence or wanton failure to settle an insurance claim, and
"The said WAYNE ZIMLICH having willfully and corruptly made each statement, one or the other of which is false and not believed by the said WAYNE ZIMLICH to have been true when made, a violation of Section 13A-10-104 of THE CODE OF ALABAMA, in violation of Section 13A-10-101, of THE CODE OF ALABAMA against the peace and dignity of the State of Alabama."
Zimlich filed a second motion to dismiss, arguing that because the second indictment charged first-degree perjury, a different offense from that charged in the first indictment, which he argued was third-degree perjury, and because the second indictment was returned more than three years after the date of the perjury, it was barred by the applicable statute of limitations, § 15-3-1, Ala. Code 1975. He contended that the misdemeanor perjury charge in the first indictment did not toll the running of the statute of limitations because, he says, the tolling statute applies only to the same offense. He further contended that the first indictment, charging a misdemeanor, was void because it was not brought within the 12-month statutory limitations period. Section 15-3-2, Ala. Code 1975. Lastly, he argued that he would be substantially prejudiced if the indictment were not dismissed. The trial court denied Zimlich's motion and found that the first indictment was not void and, that therefore, the three-year statute of limitations on the felony perjury charge was tolled by Rule 15.5(c), Ala.R.Crim.P.
Zimlich petitioned for a writ of mandamus from this Court, ordering the trial court to dismiss the indictment on statute of limitations grounds. This Court granted his petition. In so holding, this Court concluded that the first indictment tracked the language of § 13A-10-103(a), Ala. Code 1975, the statute defining third-degree perjury. That statute reads: "A person commits the crime of perjury in the third degree when he swears falsely."
The statutory limitations period for commencing a prosecution for third-degree perjury, a misdemeanor offense, is 12 months. See § 15-3-2, Ala. Code 1975. ("[T]he prosecution of all misdemeanors before a circuit or district court must be commenced within 12 months after the commission of the offense.").
This Court further found that the first indictment did not operate to toll the running of the time for returning the second indictment because the first indictment charged an offense different from that charged in the second indictment and because the first indictment was void, having been returned more than 12 months after the alleged perjury had occurred at the October 1995 trial.
The Alabama Supreme Court set aside this Court's writ of mandamus, seeState v. Zimlich, supra, holding that mandamus was an inappropriate remedy to review Zimlich's claims because Zimlich failed to establish that he had a clear legal right to the order he received and because his claims could be raised on a direct appeal of his conviction. Although the Supreme Court did not specifically rule on the merits of Zimlich's claim, it indicated that, contrary to this Court's opinion in Ex parte Zimlich, "an equally persuasive argument can be made that [the first indictment] did not track § 13A-10-103 [third-degree perjury] and did not charge misdemeanor perjury." State v. Zimlich, 796 So.2d at 402 n. 2. The Supreme Court further stated that "[w]e note that the indictment more closely tracked § 13A-10-104, which allows a person to be prosecuted for inconsistent statements that occurred within the statutory limitations period, and that it cited the felony-perjury statute, § 13A-10-101." State v. Zimlich, 796 So.2d at 402 n. 2.
The record indicates that no trial was conducted on Zimlich's claims after this Court set aside its writ of mandamus. The trial court, however, conducted three separate hearings on October 19, 2000, February 12, 2001, and May 29, 2002. In October 2000, oral argument was presented before the trial court on Zimlich's motion to dismiss. Zimlich reiterated the same arguments raised in his prior motions to dismiss. The State responded by presenting a "time line," which indicated that the second indictment was returned 89 days before the 3-year statutory limitations period for first degree perjury expired. Zimlich admitted that, if the first indictment actually charged first-degree perjury, a felony, then the statute was tolled. At the February 2001 hearing, Zimlich withdrew his plea of not guilty, and stipulated that the State could prove a prima facie case of first-degree perjury against him. At the May 2002 hearing, the State and Zimlich agreed to amend the charge to second-degree perjury, a misdemeanor, and Zimlich entered a guilty plea. In May 2002, Zimlich filed a motion to dismiss the indictment and a motion to modify the sentence, both of which the trial court denied.
Zimlich argues that the trial court erred in denying his motion to dismiss the indictment charging first-degree perjury. In support of his argument, Zimlich contends that the Alabama Supreme Court's holding setting aside this Court's grant of Zimlich's petition for a writ of mandamus did not disturb this Court's decision on the merits of his statute-of-limitations claim, and that this Court's ruling, in Ex parte Zimlich, supra, is still the "law of the case."
This Court does not agree with Zimlich's contention that our holding inEx parte Zimlich, supra, is the law of the case, because that judgment was set aside by the Alabama Supreme Court in State v. Zimlich, supra.
If the first indictment was an attempt to charge first- degree perjury, it failed to charge an essential element of the offense, materiality, and was, therefore, void. Consequently, it would not toll the statutory limitations period for the return of the second indictment. "The word 'void,' in its strictest sense, means that which has no force and effect, is without legal efficacy, is incapable of being enforced by law, or has no legal or binding force." Black's Law Dictionary, 1573 (6th ed. 1990). Since a void indictment has no legal effect, there was nothing to toll the statute of limitations. Cf. State v. Fain, 484 So.2d 558, 559 (Ala.Crim.App. 1986) ("A valid warrant of arrest is the commencement of a criminal prosecution within the meaning of the statute of limitations. . . . However, a void warrant of arrest will not toll the statute of limitations.").
Moreover, if the first indictment intended to charge perjury in the third degree, then it was filed too late; the statutory limitations period for filing an indictment of a misdemeanor is within 12 months of its commission. § 15-3-2, Ala. Code 1975. The statute of limitations is jurisdictional and an indictment filed after the expiration of the limitations period is void. Ex parte Campbell, 784 So.2d 323, 324 (Ala. 2000).
Perjury in the third degree is a Class B misdemeanor. § 13A-10-103(b), Ala. Code 1975.
Consequently, the trial court erred in denying Zimlich's motion to dismiss the perjury charge. Therefore, we reverse the judgment of the trial court and render a judgment in favor of Zimlich.
REVERSED AND JUDGMENT RENDERED.
COBB, BASCHAB, and SHAW, JJ., concur. WISE, J., dissents, with opinion.
I dissent from the majority opinion reversing Zimlich's conviction for second-degree perjury and rendering a judgment in his favor on the ground that the indictment was filed after the expiration of the statutory limitations period. Admittedly, in 1999 this Court held that the 1998 indictment returned against Zimlich charged him with third-degree perjury, a misdemeanor, rather than first-degree perjury, a felony. Thus, this Court concluded that the 1999 indictment charging him with first-degree perjury was barred by the statute of limitations. See Ex parte Zimlich, 796 So.2d 394, 398 (Ala.Crim.App. 1999).
Zimlich's claim was previously reviewed pursuant to a petition for writ of mandamus. I was not a member of the Court of Criminal Appeals when this case was decided. Had I been, I would have dissented from the decision.
However, the Alabama Supreme Court subsequently vacated this Court's decision, holding that Zimlich had no clear legal right to the dismissal of a 1999 perjury indictment as barred by the statute of limitations and, therefore, was not entitled to a writ of mandamus. State v. Zimlich, 796 So.2d 399 (Ala. 2000). Although the Supreme Court granted the State's petition for the writ of mandamus on grounds other than this Court's conclusion that the 1999 indictment was time-barred because the 1998 indictment did not operate to toll the time for returning the 1999 indictment, the Supreme Court, nevertheless, called into question this Court's holding, noting:
"Although the Court of Criminal Appeals concluded that the first indictment charged Zimlich with misdemeanor perjury and that the language of the indictment tracked § 13A-10-103 (third-degree perjury), an equally persuasive argument can be made that it did not track § 13A-10-103 and did not charge misdemeanor perjury. We note that the indictment more closely tracked § 13A-10-104, which allows a person to be prosecuted for inconsistent statements that occurred within the statutory limitations period, and that it cited the felony-perjury statute, § 13A-10-101."
796 So.2d at 402 n. 2. The Supreme Court, at least by implication, recognized that Zimlich's 1998 indictment did charge him with felony perjury, and that that indictment was not void. In my opinion, the 1998 indictment more clearly tracked the language of § 13A-10-104, which addresses perjury arising out of inconsistent statements made under oath. This Court has long held that an indictment is sufficient if it tracks the language of the charging statute.
"The first requirement of an indictment is that it apprise the accused of the nature of the offense. Ex parte Hightower, 443 So.2d 1272, 1273 (Ala. 1983). See also Reese [v. State, 456 So.2d 341 (Ala.Crim.App. 1982)]. The indictment in the instant case tracks the language of the statute and is sufficient to apprise the appellant of the crime charged. 'The indictment is sufficient if it alleges the elements of the statute or words which are equivalent in meaning.' Holder [v. State,] 584 So.2d [872,] 879 [(Ala.Crim.App. 1991)]."
Hartley v. State, 598 So.2d 2, 4 (Ala.Crim.App. 1991).
Clearly, the 1998 indictment sufficiently tracked the language of § 13A-10-104 so as to apprise Zimlich of the nature of the offense with which he was being charged. Further, I believe that the inclusion of § 13A-10-101 was simply to put Zimlich on notice of the degree of perjury with which he was being charged, as provided in § 13A-10-104(b).
While the 1998 indictment was not a model of clarity, I cannot agree that the language of that indictment was insufficient to charge Zimlich with the offense of first-degree perjury under § 13A-10-104, rather than under § 13A-10-101. Since the 1998 indictment was not void, it tolled the statute of limitations. See § 15-3-6, Ala. Code 1975; Rule 15.5(c), Ala.R.Crim.P. Therefore, the trial court correctly denied Zimlich's motion to dismiss the 1999 indictment. Because the 1998 indictment was, at most, voidable, rather than void, the 1999 indictment was not barred by the statute of limitations; thus, the jurisdiction of the trial court was not implicated. Moreover, because Zimlich failed to reserve this issue for appellate review, his guilty plea waived any further claim as to the validity of the 1999 indictment, because a guilty plea waives all nonjurisdictional defects. See, e.g., Thompson v. State, 680 So.2d 1014, 1018 (Ala.Crim.App. 1996); Prim v. State, 616 So.2d 381, 382 (Ala.Crim.App. 1993). Based on the foregoing, I would affirm Zimlich's conviction for second-degree perjury, based on the 2002 amendment to the 1999 indictment. Therefore, I must dissent.