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Ex Parte Zimlich6/10/1999
ich to have been true when made, in violation of section 13A-10-101, of the Code of Alabama against the peace and dignity of the State of Alabama." (Emphasis in original.)
This June 1998 indictment, which tracked the language of § 13A-10-103, third-degree perjury, charged Zimlich with testifying falsely in October 1995. The second indictment alleged, in part, that "the matter so sworn to material to a determination of whether or not there had been bad faith, negligence or wanton failure to settle an insurance claim." There is no dispute that the second indictment was filed more than three years after the alleged incident. However, according to § 15-3-6, the time between the issuance of a first indictment and the issuance of a subsequent indictment is deducted for purposes of calculating the statute of limitations. This section reads:
"When an indictment is lost, mislaid or destroyed, when a judgment is arrested or an indictment quashed for any defect therein, for the reason that it was not found by a grand jury regularly organized, because it charged no offense or for any other cause or when the prosecution is dismissed because of a variance between the allegations of the indictment and the evidence and a new indictment is ordered to be preferred, the time elapsing between the preferring of the first charge or indictment and the subsequent indictment must be deducted from the time limited for the prosecution of the offense last charged." See also Rule 15.5(c), Ala.R.Crim.P.
Before § 15-3-6 and Rule 15.5(c) may operate to save a subsequent indictment, however, some conditions must be present. Initially, the first and the subsequent indictment must be issued for the "same" offense. As this court recently stated in Campbell v. State, [Ms. CR-97-0469, August 14, 1998] ___ So.2d ___, ___ (Ala.Cr.App. 1998), quoting Finley v. State, 683 So.2d 7, 8 (Ala.Cr.App. 1996), "'under § 15-3-6, the statute of limitations tolled during those periods that an indictment for the offense in question pending against the appellant." (Emphasis added.) Here, the first indictment tracked the language of the third-degree perjury statute, § 13A-10-103, which states in part, "A person commits the crime of perjury in the third degree when he swears falsely." There was no allegation in the first indictment that the alleged false statements were "material." The first indictment thus charged Zimlich with the misdemeanor offense of perjury in the third degree, while the second indictment charged Zimlich with first-degree perjury for making a false statement, under oath, which was material to the proceedings. The first indictment charged a different offense than did the second indictment.
Also, to effectively toll the limitations period, the first indictment must issue before the limitations period has expired. The first indictment charged third-degree perjury -- a misdemeanor. "The prosecution of all misdemeanors before a circuit or district court must be commenced within 12 months after the commission of the offense." The first indictment, returned more than 12 months after the alleged perjury occurred, was returned after the statute of limitations period had expired. Thus, the first indictment was void.
For the foregoing reasons, the first indictment did not operate to toll the time for returning the second indictment. Judge Kendall should have granted the motion to dismiss the second indictment because the statute of limitations for commencing the prosecution had expired. This petition is due to be granted.
PETITION GRANTED.
McMillan, Cobb, and Baschab, JJ., concur.
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