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09/09/94 BILLY RAY ESTES v. STATE

September 9, 1994

BILLY RAY ESTES, ALIAS
v.
STATE



Appeal from Tuscaloosa Circuit Court. CC-92-527. Robert Harwood, TRIAL JUDGE.

Rule 39(k) Motion Denied October 21, 1994. Rehearing Denied October 21, 1994. Released for Publication March 4, 1995.

Bowen

The opinion of the court was delivered by: Bowen

BOWEN, PRESIDING JUDGE

Billy Ray Estes, the appellant, was convicted of theft of property in the first degree and was sentenced to eight years' imprisonment. He was also convicted of engaging in a surface coal mining operation without a valid permit and sentenced to 12 months' imprisonment. On this direct appeal from those convictions, the appellant contends that the trial court committed reversible error in allowing of the indictment to be amended.

Count I of the indictment charged theft in the first degree. The appellant does not challenge his conviction under that count.

Count II charged the appellant with engaging in surface mining operations without a valid permit. In pertinent part, Count II states that the appellant

"did, being a person engaged in or controlling a surface mining operation, engage in a surface mining operation after October 1, 1970 without a valid permit from the Surface Mining Commission of Alabama, in violation of Section 9-16-4 of the Code of Alabama." C.R. 3.

Section 9-16-4, Ala. Code 1975, states:

"No operator shall engage in any surface mining, as defined in this article, after October 1, 1970, without a valid permit from the department to engage in such surface mining. A separate permit shall be required for each such surface mining operation that is not contiguous to a surface mining operation for which the operator has a valid permit."

The term "operator" is defined in § 9-16-2(7) as "any person, firm, partnership, association or corporation engaged in or controlling one or more surface mining operations." Section 9-16-4 is part of the Alabama Surface Mining Act of 1969. See §§ 9-16-1 through -15. The penalty for a violation of § 9-16-4 is a fine of not less than $500 nor more than $5,000. Additionally, a violator is required to post a bond or surety, and to reclaim the affected land. § 9-16-11(b).

After the State had rested its case-in-chief, the prosecutor filed a motion to amend the indictment. R. 230; C.R. 30. The trial court granted the motion over the objection of the appellant.

Count II, as amended, charged that the appellant

"did, being a person engaged in or controlling a surface coal mining operation, engage in a surface coal mining operation after May 6, 1981, without a valid permit from the Alabama Surface Mining Reclamation Commission, in violation of ...


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