State of Alabama v. Samantha Kaye Shiver (Appeal from Houston Circuit Court: CC-22-1655)

Rel: November 8, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

Alabama Court of Criminal Appeals
OCTOBER TERM, 2024-2025
_________________________

CR-2023-0604
_________________________

State of Alabama

v.

Samantha Kaye Shiver

Appeal from Houston Circuit Court
(CC-22-1655)

McCOOL, Judge.

The State of Alabama ("the State") has appealed the Houston

Circuit Court's dismissal of a complaint charging Samantha Kaye Shiver

with driving under the influence of alcohol ("DUI"). See § 32-5A-191, Ala.
CR-2023-0604

Code 1975. For the reasons set forth herein, we reverse the circuit court's

judgment and remand the case for that court to reinstate the complaint.

Facts and Procedural History

On November 5, 2021, Shiver was issued a Uniform Traffic Ticket

and Complaint ("UTTC") charging her with violating § 32-5A-191(a)(5),

which prohibits a person from driving a vehicle while "[u]nder the

influence of any substance which impairs the mental or physical faculties

of such person to a degree which renders him or her incapable of safely

driving." Although § 32-5A-191(a)(5) prohibits a person from driving a

vehicle while under the influence of "any substance," subsections (a)(1)-

(a)(4) of that statute expressly prohibit a person from driving a vehicle

while under the influence of alcohol or a controlled substance. Thus, this

Court has previously held that § 32-5A-191(a)(5) "was enacted to cover

those situations in which the defendant's mental and/or physical faculties

are impaired by some substance other than alcohol or a controlled

substance." Sturgeon v. City of Huntsville, 599 So. 2d 92, 94 (Ala. Crim.

App. 1992) (emphasis added).

In August 2022, Shiver was brought to trial in the Houston District

Court. "Mere seconds before trial was commenced" (R. 6), the State

2
CR-2023-0604

moved to amend the complaint so that, instead of charging Shiver with

DUI under § 32-5A-191(a)(5), it charged her with DUI under § 32-5A-

191(a)(2), which prohibits a person from operating a vehicle while

"[u]nder the influence of alcohol." The district court allowed the

amendment over Shiver's objection, and she was subsequently convicted

of DUI under § 32-5A-191(a)(2).

Shiver appealed to the circuit court for a trial de novo and then filed

a motion to dismiss the complaint, arguing that the district court had

improperly allowed the State to amend the charge against her. In

support of her motion, Shiver argued that "it is axiomatic that [a] charge

cannot be amended … if the amended offense is a different offense," and,

according to Shiver, § 32-5A-191(a)(2) and § 32-5A-191(a)(5) "are

completely separate offenses." (C. 67, 69.) Shiver also argued that she

"was never put on notice or informed, except mere seconds before trial in

district court, that she would have to defend a charge … that was related

to and/or involved alcohol because the UTTC charged her with violating

[§ 32-5A-191(a)(5)]." (C. 68.)

The circuit court held a hearing on Shiver's motion, at which the

State argued that § 32-5A-191(a)(2) and § 32-5A-191(a)(5) are not

3
CR-2023-0604

different offenses but, rather, alternative means of proving the same

offense, i.e., DUI. The State also argued that Shiver was aware "that it

was alcohol that was involved" and was therefore "on notice as far as

what the charge was as to DUI." (R. 9.) Thus, according to the State, the

district court had properly allowed it to amend the charge against Shiver.

On August 10, 2023, the circuit court dismissed the complaint,

finding that "the amendment to the complaint … operated to charge an

offense not contemplated by the original complaint, and [Shiver] was not

reasonably placed on notice as to the charge she would be required to

defend." (C. 88.) The State filed a timely notice of appeal.

Discussion

On appeal, the State contends that the circuit court erred by

dismissing the complaint against Shiver, arguing that the court

erroneously concluded that the DUI charge had been improperly

amended. We agree.

Rule 13.5(a), Ala. R. Crim. P., states:

"A charge may be amended by order of the court with
the consent of the defendant in all cases, except to change the
offense or to charge new offenses not contemplated by the
original indictment. The court may permit a charge to be
amended without the defendant's consent, at any time before
verdict or finding, if no additional or different offense is

4
CR-2023-0604

charged and if the substantial rights of the defendant are not
prejudiced."

(Emphasis added.)

Section 32-5A-191(a) states:

"A person shall not drive or be in actual physical control
of any vehicle while:

"(1) There is 0.08 percent or more by weight
of alcohol in his or her blood;

"(2) Under the influence of alcohol;

"(3) Under the influence of a controlled
substance to a degree which renders him or her
incapable of safely driving;

"(4) Under the combined influence of alcohol
and a controlled substance to a degree which
renders him or her incapable of safely driving; or

"(5) Under the influence of any substance
which impairs the mental or physical faculties of
such person to a degree which renders him or her
incapable of safely driving."

In Stone v. City of Huntsville, 656 So. 2d 404 (Ala. Crim. App. 1994),

this Court explained that "[t]he five subsections of § 32-5A-191(a) provide

'alternative methods of proving' the 'single offense of driving under the

influence.' " Stone, 656 So. 2d at 413 (quoting Bartlett v. State, 600 So.

2d 336, 342 (Ala. Crim. App. 1991)) (emphasis added). Thus, the State

5
CR-2023-0604

correctly argues that it did not charge Shiver with a different offense by

amending the complaint so that it alleged a violation of § 32-5A-191(a)(2)

instead of § 32-5A-191(a)(5). That fact does not end our analysis, though,

because Rule 13.5 provides that a charge may be amended without the

defendant's consent "if no additional or different offense is charged and

if the substantial rights of the defendant are not prejudiced." (Emphasis

added.)

The circuit court found that Shiver's substantial rights had been

prejudiced by the amended charge because, according to the court, she

had not received reasonable notice that the State would be prosecuting

her under § 32-5A-191(a)(2) instead of § 32-5A-191(a)(5), which was the

charge cited in the UTTC. However, that finding was based on the fact

that Shiver had received notice of the amended charge "[m]ere seconds"

before her district-court trial began. In other words, the circuit court

dismissed the complaint against Shiver based on what the court

perceived to be an error in the district-court proceedings.

A defendant who is convicted of an offense in district court has the

right to appeal to circuit court for a new trial. Ex parte Sorsby, 12 So. 3d

139, 146 (Ala. 2007). However, when a defendant exercises that right,

6
CR-2023-0604

"review in the circuit court is by trial de novo without any consideration

being given to the prior proceedings in the district court," which means

that the trial proceeds " 'just as if it had originated in the circuit court.' "

Id. (quoting Louisville & Nashville R.R. v. Lancaster, 121 Ala. 471, 473,

25 So. 733, 735 (1899)). Thus, although the circuit court is a court of

appeal in that situation, see § 12-12-71, Ala. Code 1975, it does not act as

an appellate court in the sense that this Court acts, i.e., by reviewing

alleged errors in the lower-court proceedings, but instead tries the case

anew. As the Alabama Court of Civil Appeals has explained, the circuit

court's role is "to hear the cause de novo and not to assess the correctness

of the district court's judgment." Casey v. Bingham, 265 So. 3d 288, 292

(Ala. Civ. App. 2018) (emphasis added). The North Carolina Court of

Appeals has similarly explained that,

" '[i]nasmuch as the trial in the Superior Court is de novo,
alleged errors committed in the inferior court must be
disregarded.' State v. Crandall, 225 N.C. 148, 154, 33 S.E.2d
861, 864 (1945) (citing State v. Brittain, 143 N.C. 668, 57 S.E.
352 (1907) (other citation omitted)). As a result, the Superior
Court does not engage in appellate review of the correctness
of the District Court's rulings in the course of handling an
appeal from a District Court conviction."

State v. Petty, 212 N.C. App. 368, 371, 711 S.E.2d 509, 511 (2011). See

also Waters v. Director of Revenue, 588 S.W.3d 209, 215 (Mo. Ct. App.

7
CR-2023-0604

2019) (noting that a trial de novo "is an original proceeding and is not

designed or intended to review the underlying … proceeding for alleged

error").

Given the foregoing principles, whether Shiver received reasonable

notice of the amended charge before her district-court trial should not

have been of any concern to the circuit court. Rather, the circuit court

should have considered whether Shiver's substantial rights would be

prejudiced by having to defend herself against the amended charge in a

trial de novo in the circuit court. That said, the notice Shiver received

was clearly reasonable with respect to her circuit-court trial because, at

the time the complaint was dismissed, she had known for almost one year

that the State would be prosecuting her under § 32-5A-191(a)(2) instead

of § 32-5A-191(a)(5). Thus, the circuit court erred by concluding that

Shiver "was not reasonably placed on notice as to the charge she would

be required to defend" in the circuit court.

In short, the amended complaint did not charge Shiver with a

different offense, and Shiver has received ample notice that the State will

be prosecuting her under § 32-5A-191(a)(2) in her trial de novo in the

circuit court. Thus, the circuit court erred by dismissing the complaint

8
CR-2023-0604

against Shiver. We therefore reverse the circuit court's judgment and

remand the case for that court to reinstate the complaint against Shiver.

We note in closing that Shiver was not without recourse for

challenging the district court's refusal to dismiss the complaint, but the

circuit court was not the place for raising that challenge. Rather, Rule

30.2(1), Ala. R. Crim. P., and § 12-12-72(1), Ala. Code 1975, authorized

Shiver to appeal the district court's ruling directly to this Court.1

However, Shiver chose instead to appeal to the circuit court for a trial de

novo, and, by doing so, she began the proceedings anew and thus could

no longer rightfully complain that she had not received reasonable notice

of the amended charge in the district-court proceedings.

REVERSED AND REMANDED.

Windom, P.J., and Kellum, Cole, and Minor, JJ., concur.

1Rule 30.2(1) and § 12-12-72(1) provide that an appeal to this Court

from a district-court judgment requires an "adequate record or
stipulation of facts" and that "the right to a jury trial is waived by all
parties entitled" to a jury trial. In this case, the parties stipulated to the
relevant facts, and Shiver was the only party with a right to a jury trial.
See Ex parte Boswell, 558 So. 2d 918, 921 (Ala. 1990) (holding that "the
State is not a party entitled to demand a trial by jury on a misdemeanor
appeal"). Thus, nothing prevented Shiver from appealing the district
court's judgment directly to this Court.
9