Code of Alabama

Ala. Code § 15-8-91 (2026)

Prosecution Dismissed Where Amendment Not Consented to by Defendant; New Indictment; Form of Entry of Record.

✓ official Alabama Legislature (ALISON) text, current July 2026

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If the defendant will not consent to such amendment of an indictment, the prosecution may be dismissed at any time before the jury retires as to the count in the indictment to which the variance applies, and the court may order another indictment to be preferred at a subsequent time, in which case an entry of record must be made to the effect following:

“The State )In this case, it appeared from the evidence that there was a variance between the allegations of the indictment and the “The State proof in this (setting out the variance); or it appeared from the evidence that the defendant’s name was …(stating it); and the defendant not consenting to allow the indictment to be amended, the prosecution was dismissed before the jury retired, and another indictment was ordered to be preferred.”v.) A. B.)

(Code 1852, §594; Code 1867, §4144; Code 1876, §4817; Code 1886, §4390; Code 1896, §4918; Code 1907, §7156; Code 1923, §4551; Code 1940, T. 15, §254.)

Notes of Decisions

Cited in 9 cases, 1979–2003 · leading case: Allen v. State, 472 So. 2d 1122 (Ala. Crim. App. 1985).

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Allen v. State, 472 So. 2d 1122 (Ala. Crim. App. 1985). · cites it 4× “Section 15-8-91, Code of Alabama 1975, provides that when a defendant does not agree to an amendment in an indictment, *1125 the trial judge may properly dismiss the prosecution and order a new indictment to be preferred. This was the procedure followed in this case.”

Ex Parte Allred, 393 So. 2d 1030 (Ala. 1981). · cites it 2× “, the State sought to amend the indictment pursuant to § 15-8-90, Code 1975, which authorizes an indictment to be amended, with consent of Defendant, as to certain matters.”

Moore v. State, 366 So. 2d 1150 (Ala. Crim. App. 1979). · cites it 7× “We think the trial court took the proper course in holding that there was not substantial evidence to support the averment as to fear, that there was a variance between the averment and the proof.”

Johnson v. State, 820 So. 2d 842 (Ala. Crim. App. 2000). “If the defendant does not consent to the amendment, then the procedure is to send the case back to the grand jury so that a new indictment may be issued.”

Ex Parte Collins, 385 So. 2d 1005 (Ala. 1980). “The prosecutor moved the trial court to dismiss the prosecution as per Code 1975, § 15-8-91, which motion the trial court granted.”

Ex Parte Verzone, 868 So. 2d 399 (Ala. 2003). “" Section 15-8-91 continues: "If the defendant will not consent to such amendment of an indictment, the prosecution may be dismissed at any time before the jury retires as to the count in the indictment to which the variance applies, and the court may order another indictment to…”

Hammonds v. State, 410 So. 2d 908 (Ala. Crim. App. 1982). “(See § 15-8-91, Code of Alabama 1975, for the proper course of action when the defendant does not consent to an amendment.”

Andrews v. State, 397 So. 2d 1116 (Ala. Crim. App. 1981). · cites it 3× “It appears from the transcript that in granting the State’s motion to dismiss the prosecution in the former case, the court was relying upon Code of Alabama 1975, § 15-8-91, that provides for a dismissal of an indictment when defendant will not consent to an amendment of the…”

Allred v. State, 393 So. 2d 1026 (Ala. Crim. App. 1979). ““§ 15-8-91. If the defendant will not consent to such amendment of an indictment, the prosecution may be dismissed at any time before the jury retires as to the count in the indictment to which the variance applies, and the court may order another indictment to be preferred at a…”

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