Finch v. State

479 So. 2d 1314
CourtCourt of Criminal Appeals of Alabama
DecidedOctober 8, 1985
StatusPublished
Cited by5 cases

This text of 479 So. 2d 1314 (Finch v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Finch v. State, 479 So. 2d 1314 (Ala. Ct. App. 1985).

Opinion

479 So.2d 1314 (1985)

Billy Joe FINCH
v.
STATE.

4 Div. 299.

Court of Criminal Appeals of Alabama.

May 14, 1985.
On Return to Remand October 8, 1985.
Rehearing Denied November 12, 1985.

*1315 Richard Waldrop, Enterprise, for appellant.

Charles A. Graddick, Atty. Gen., and Thomas K. Brantley, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

After a conviction of the offense of receiving stolen property in the first degree, in violation of § 13A-8-17, Code of Alabama 1975, Billy Joe Finch was sentenced as a recidivist to life imprisonment.

I

Finch contends that the court erred in denying his motion for an amendment of the trial transcript to show that the search warrant employed in this case had been altered. The evidence indicated that a search warrant was issued for a search of the premises at 317 West Watts Street, Enterprise, Alabama. The officers then proceeded to Finch's residence at 313 West Watts Street. Underneath the house they found two boxes of silver flatware which had been removed from the residence of a Mrs. Martin in Enterprise. It is contended that after the search and seizure, the search warrant was altered to indicate the address of the premises actually searched, 313 West Watts Street.

Appellant filed a motion for correction of the record by having copies of the affidavit and warrant made part of the record. This motion was denied. One of appellant's grounds for his motion to suppress the fruits of this search was that the premises searched were not the premises described in the documents. Applying Rule 10(f), Alabama Rules of Appellate Procedure, upon suggestion of appellant, we direct that this omission be corrected by adding to *1316 the record and transmitting to this court a copy of the affidavit and warrant which were the foundation of the search and seizure in this case. All other matters are reserved.

II

Appellant next contends that the trial court improperly considered a previous conviction of his under the Federal Youth Corrections Act. The record shows that the court did receive into evidence in this case three certified copies of prior convictions, including one under the Federal Youth Corrections Act. The record further shows that the state gave to Finch a document indicating an official notice that the state intended to offer under the Habitual Felony Offenders Act evidence of two prior convictions. Both of these prior convictions were convictions in the state court. On page 19 of the record, there appears a copy of "Notice of Intent to Proceed under Habitual Offender Act and Notice of Previous Convictions." This document gave notice to the defense that the state intended to rely on a conviction of receiving stolen property in 1972, case no. 4804 in the Circuit Court of Coffee County, Alabama, and a conviction of receiving stolen property in 1983, case no. CC-82-56 in the Circuit Court of Coffee County, Alabama. No mention is made of the federal offense, a certified copy of which was received into the record, as appears on page 22 of the record. It is apparent on the face of the record therefore, that the state failed to provide notice to Finch of its intent to rely on the federal conviction. Because this case is due to be returned to the trial court to supplement the record, we will not at this time address problems in sentencing, neither the consideration of the sentence as to which there was no notice nor the alleged shortcomings or discrepancies in the other convictions.

Accordingly, under the provisions of Rule 10(f), Alabama Rules of Appellate Procedure, it is directed that the circuit court supplement the record by adding thereto the copies of the original affidavit and warrant leading to the search of the appellant's premises.

ORDER TO SUPPLEMENT RECORD ISSUED.

All the Judges concur.

ON RETURN TO REMAND

This case was remanded to the Circuit Court of Coffee County because that court denied the appellant's Rule 10(f), A.R.A.P., motion to correct the record so that the affidavit and search warrant would become part of the record. In ordering that the record be supplemented, "We direct[ed] that this omission be corrected by adding to the record and transmitting to this court a copy of the affidavit and warrant which were the foundation of the search and seizure in this case." In accordance with our directions, the Circuit Court of Coffee County supplemented the record so that we now have before us a copy of the affidavit and search warrant.

The evidence is essentially undisputed. An Enterprise police officer received information from an informant that the appellant, Billy Joe Finch, had in his possession two wooden silver chests, one containing a set of silver-plated flatware and the other containing a set of gold-plated flatware. The description of the two cases of flatware and their contents matched a description of flatware stolen from a residence two days earlier on December 26, 1983. Immediately after receiving the information and after having corroborated the tip by questioning individuals to whom the appellant had supposedly attempted to sell the flatware, one police officer began watching the appellant's residence while the officer who had received the information from the informant obtained a search warrant. Both the affidavit and the search warrant stated that the stolen properly was in the possession of the appellant at his residence located "at 317 West Watts Street in the City limits of Enterprise, Alabama."

*1317 This officer testified that he knew the appellant and knew where the latter lived, and furthermore, that he had even been to the appellant's residence earlier in the week. Notwithstanding the officer's personal knowledge of the appellant's address, he erroneously advised the issuing magistrate that the appellant's address was 317 West Watts Street, when in fact, the house number was 313. "[E]vidently I made a mental error when I gave [the issuing magistrate] the address because Billy Joe Finch did at one time live at 317 and he had since moved into where his maw-in-law [sic] lived. There was two houses between the two." Nevertheless, he executed the search warrant knowing that the address authorized to be searched was incorrect; he knew that in the search warrant the appellant's residence was incorrectly identified as 317 West Watts Street instead of 313 West Watts Street.

"Q. But you went ahead and searched 313 having a warrant for 317?
"A. Uh-huh.
"....
"Q. There was no mistake in your mind knowing Billy Joe Finch's residence?
"A. The house—the mental error was on the number, but I knew the house.
"Q. I mean, you knew where 313 was?
"A. Yes, sir.
"Q. And you knew where 317 was where he used to live, but when you went to make the search you searched the house with a warrant that said 317 on it?
"A. Yes, sir."

When the officer made the return to the issuing magistrate, after executing the search warrant, he informed the judge about the incorrect house number. The judge then altered the affidavit and search warrant so that "317" was changed to "313".

The only disputed testimony was that when the officer presented the warrant to the appellant, the appellant testified that he told the officer before the search commenced that the house number was incorrect.

"Q. All right. Did they have a warrant to search your property?
"A.

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479 So. 2d 1314, Counsel Stack Legal Research, https://law.counselstack.com/opinion/finch-v-state-alacrimapp-1985.