Judge rules new indictment not needed to correct charge

Wednesday, March 2, 2005 | 8:32 a.m.

District Judge Valorie Vega ruled Tuesday that an indictment charging a woman with neglect of her daughter does not need to go back to the grand jury despite the fact that the original version of the indictment mistakenly noted that it it was a felony charge.

Prosecutors properly corrected the error by filing a new indictment to reflect that the charge in question against Cheryl Botzet, also known as Cheryl Musso, is actually a gross misdemeanor, Vega ruled.

In issuing her ruling Vega said the district attorney's office making the change from a felony to a gross misdemeanor was "akin to a typo and not a material change.

Previously Vega ruled that the district attorney's office did wrongly charge Botzet with a felony count of performance of an act of neglect of duty willful or wanton disregard for safety of persons or property.

Botzet's attorney, Herb Sachs, argued that the entire matter needed to go back to the grand jury because only a grand jury could file a superceding indictment. He argued that the district attorney's office's refiling of the indictment with the changed wording was illegal.

But Chief Deputy District Attorney Vicki Monroe successfully argued, "We didn't change anything, not a fact and not the charge. We simply changed it from a felony to misdemeanor."

Sachs tried to continue making his argument after Vega ruled, but Vega cut him off.

"You may dispute it, and you know what to do," she said, noting that he could appeal the ruling.

Botzet is accused of letting her diabetic daughter by not providing the girl with proper treatment. Botzet faces a separate charge of murder in that case.

The indictment in question Tuesday -- charging Botzet with one count each of "child abuse and neglect, performance of an act neglect of duty willful or wanton disregard for safety of persons or property" and battery with use of a deadly weapon -- was one that was filed after the murder charge.

Botzet's trial for those charges is slated to start April 11.

Botzet's murder trial is scheduled for March 14 before District Court Judge Sally Loehrer.