
    STATE of Alabama v. Dennis Neil PATTERSON.
    4 Div. 415.
    Court of Criminal Appeals of Alabama.
    Sept. 29, 1989.
    Don Siegelman, Atty. Gen., and Joseph G.L. Marston III, Asst. Atty. Gen., for appellant.
    James R. McKoon, Jr., Phenix City, for appellee.
   TAYLOR, Presiding Judge.

This is an appeal by the State from a pre-trial order of the Circuit Court of Russell County quashing an indictment. The appeal is brought pursuant to Rule 17, A.R.Crim.P. Temp.

The appellee, Dennis Neil Patterson, was indicted by the Russell County grand jury during its winter 1989 term for the unlawful receipt of controlled substances, a violation of § 13A-12-212, Code of Alabama 1975 (1988 Supp.). The evidence tended to establish that appellee was arrested for this crime on September 8, 1988, after he picked up a Valium prescription from a pharmacy. The prescription had been called in by someone purporting to be a physician in the same locality as the pharmacy. This was discovered when the pharmacist who received the call attempted to verify the prescription.

Appellee was arraigned on February 1, 1989, and entered a plea of not guilty. Sometime after this, defense counsel made an oral motion to quash the indictment. On May 23, 1989, after a hearing on said motion, the trial court quashed the indictment.

After reviewing the record, we find that the order of the trial court quashing the indictment is due to be reversed because the appellee’s motion to quash was not timely made. In Smith v. State, 401 So.2d 185, 186 (Ala.Cr.App.), cert. denied, 401 So.2d 187 (Ala.1981), we made it clear that “[t]he defendant waived his right to demur and move to quash the indictment by initially entering a plea of not guilty.” See also Underwood v. State, 248 Ala. 308, 27 So.2d 492 (1946); Swint v. State, 455 So.2d 285 (Ala.Cr.App.1984); Gentry v. State, 344 So.2d 1246 (Ala.Cr.App.), cert. denied, 344 So.2d 1249 (Ala.1977).

We further note that even if the motion to quash had been timely, the trial court’s action would still require reversal. Appel-lee was indicted for the unlawful receipt of controlled substances, a violation of § 13A-12-212, Code of Alabama 1975 (1988 Supp.). The attempt to commit this crime is, by statute, an included offense. § 20-2-164, Code of Alabama 1975 (1988 Supp.). The stipulated facts established that, at the very least, appellee was guilty of an attempted unlawful receipt of controlled substances. See § 20-2-162 and § 13A-4-2, Code of Alabama 1975. Thus, the indictment should not have been quashed.

The judgment of the trial court is due to be, and it is, hereby, reversed and the cause is remanded.

REVERSED AND REMANDED.

TYSON and PATTERSON, JJ., concur.

McMILLAN, J., joins with BOWEN, J., who concurs in result only with opinion.

BOWEN, Judge,

concurring in result only.

I concur only in the result reached by the majority, that being, that the trial judge should not have quashed the indictment.

Rule 16.3(a)(1), A.R.Cr.P.Temp., provides that “[a]ny motion which must under Temporary Rule 16.2 be made before trial must be made ... in circuit court at or before arraignment or by such later date as may be set by the court.” See also Tucker v. State, 537 So.2d 59 (Ala.Cr.App.1988). Subsection (b) of that rule provides that “[t]he court may extend or limit the time of filing such motions for good cause.”

Here, the trial court obviously treated the motion to quash as timely since it ruled on the merits. Under the circumstances, we should assume that the court “extend[ed] ... the time for filing” the motion to quash. The majority appears to be holding, in effect, that a trial court has no jurisdiction to entertain a motion to quash filed after arraignment. That is not the intent of Rule 16.3(a)(1).

I agree with the majority that the indictment need not have been quashed in order to prosecute the appellee for an included offense. Where an indictment charges the completed offense, it embraces, by operation of law, an attempt to commit the offense. Champion v. State, 266 Ala. 283, 95 So.2d 801 (1957); Hardwick v. State, 26 Ala.App. 536, 164 So. 107, cert. denied, 231 Ala. 151, 164 So. 112 (1935). No separate count of attempt is required in the indictment. Ryan v. State, 41 Ala.App. 340, 132 So.2d 264 (1961).

The issue, however, is not whether the State was precluded, by the trial court’s quashing the indictment, from prosecuting appellee for a lesser included offense under the same indictment. The issue is whether the State was precluded, by the trial court’s ruling, from prosecuting appellee for the named offense.

In my judgment, the final sentence of Rule 17 should be read literally, i.e. that the trial court’s “order, if not reversed on appeal, will be fatal to the prosecution of the charge.” “The charge” must be taken to mean “the particular offense outlined in the indictment” and not any and all included offenses.

The trial court’s order here was “fatal to the prosecution of the charge” because it limited the State to prosecution for a lesser included offense.  