Prosecutors want Updyke's charges to remain felonies

Auburn, Al.
Prosecutors in the case of the University of Alabama fan accused of poisoning Auburn University's Toomer's Oaks are asking a judge to deny a motion by the defense to reduce his felony charges to misdemeanors over the value of the trees.

Glennon Threatt                     Harvey Updyke Jr

Harvey Updyke Jr., 63, is charged with two felony counts of criminal mischief, two misdemeanor counts of desecrating a venerated object and two felony counts of unlawful damage, vandalism or theft of property from a farm animal or crop facility in connection with the alleged poisoning of the iconic trees at the northeast corner of the Auburn University campus sometime after the 2010 Iron Bowl.

Attorney Everett Wess filed a motion on Tuesday asking the felony criminal mischief charges and the vandalism of the crop facility charges be reduced to misdemeanors because the live oaks, by definition of state law, are valued at $20 apiece and do not meet the felony property value requirement of $250 or more.

The felony charges carry sentences of as much as 10 years in prison, while misdemeanors carry sentences of up to one year in prison.

In its response filed Wednesday, the Lee County District Attorney's Office asked Lee County Circuit Judge Jacob A. Walker III to deny Wess' motion, arguing the charges should remain felonies because the historic significance of the oaks combined with the money spent by the university to save them represent a greater value than that of ordinary trees.

The issue could be taken up by the court on Thursday when Walker is scheduled to hear a motion by Updyke's attorney Glennon Threatt to withdraw from the case after an on-air apology by his client on a sports radio show. Threatt said he advised against the apology by Updyke in late September to the Auburn family for the hurt he had caused. Updyke stopped short of admitting to the poisoning, though he previously said he was "Al from Dadeville," the caller who bragged of the attack on the oaks on Birmingham-based Paul Finebaum's sports radio program in January.

Threatt said he felt he was no longer effective counsel for Updyke.

Updyke, currently free on bond, is scheduled for trial during the circuit court session in Lee County beginning at the end of the month.