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State v. Zimlich5/5/2000
ne 1998 indictment was void because it attempted to state a first-degree perjury charge but in actuality stated only a third-degree perjury charge because it did not allege that the alleged false statements made either during the malpractice trial or during Zimlich's trial against his insurance carrier were "material." In making this argument, Zimlich asserted that the Court of Criminal Appeals needed to decide whether Rule 15.5(c), Ala. R. Crim. P., applied; whether the tolling statute, § 15-3-6, Ala. Code 1975, applied and was superior to Rule 15.5(c); and whether the tolling statute permitted a subsequent indictment to increase the nature of the alleged offense from a misdemeanor to a felony. The uncertainty about the applicability of Rule 15.5(c) and § 15-3-6 and the question whether the State's error in regard to the first indictment was the kind of "inadvertent technical error" contemplated by Rule 15.5(c) (see Committee Comments to that rule) lead us to conclude that Zimlich had no clear legal right to an order by Judge Kendall dismissing the second indictment as barred by the statute of limitations, given that Zimlich, if improperly convicted, would have had a remedy by appeal.
The State is entitled to a writ directing the Court of Criminal Appeals to set aside its writ of mandamus.
PETITION GRANTED; WRIT ISSUED.
Houston, Cook, Lyons, Brown, and Johnstone, JJ., concur.
Hooper, C.J., and Maddox and See, JJ., concur in the result.
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