CopyCited 54 times | Published | Supreme Court of Georgia | Feb 10, 2003 | 276 Ga. 179
...He moved to quash the second bill of indictment, on the ground that the trial court was divested of jurisdiction due to the pending appeal. At a hearing on the motion to quash, the State requested that it be allowed to enter a nolle prosequi on the second bill of indictment to avoid the operation of OCGA §
17-7-53.1, which bars the State from continuing to prosecute a defendant if the trial court has twice quashed the charges against him....
...The trial court permitted the State to enter a nolle prosequi over Lejeune's objection. The State then withdrew its appeal of the order on the first indictment and sought and obtained a third indictment of Lejeune. Lejeune filed a plea of former jeopardy based upon OCGA §
17-7-53.1, contending that the trial court should *894 have quashed the second bill of indictment and dismissed his case. The trial court denied the plea of former jeopardy and Lejeune appeals. 4. The trial court has discretion to order the entry of a nolle prosequi, instead of quashing the indictment, to avoid the application of OCGA §
17-7-53.1. See Gourley v. State,
268 Ga. 235(1),
486 S.E.2d 342 (1997). Section
17-7-53.1 acts as a bar to prosecution on a third indictment for the same offense if the trial court has quashed two prior indictments in response to specific matters raised by either the defendant or on the court's own motion. Nothing in §
17-7-53.1 evidences an intent to include actions initiated by the State in the enumerated matters giving rise to application of the statutory bar to future prosecution. Gourley v. State, supra at 236(1),
486 S.E.2d 342. Only the State may initiate a nolle prosequi order. Redding v. State,
205 Ga. App. 613, 614-615(2),
423 S.E.2d 10 (1992). Therefore, the bar to further prosecution set forth in OCGA §
17-7-53.1 is inapplicable to the present case....
CopyCited 22 times | Published | Supreme Court of Georgia | Mar 23, 2012 | 727 S.E.2d 670, 2012 Fulton County D. Rep. 1101
...sle v. State,
277 Ga. 99, 101 (586 SE2d 240) (2003)].” Davis v. Wilson,
280 Ga. 29 (622 SE2d 325) (2005). Thus, despite the order of nolle prosequi entered as to the first indictment, Dempsey would still be subject to reindictment. Yet, under OCGA §
17-7-53.1,3 he is not subject to reindictment if both indictments against him were quashed....
...r civil rights restored.
The parties stipulate that at the time the grand jury was sworn and convened on August 23, 2009, both the presiding judge and the District Attorney’s office were aware that Prescott was a sitting elected official.
OCGA §
17-7-53.1 reads:
If, upon the return of two “true bills” of indictments or presentments by a grand jury on the same offense, charge, or allegation, the indictments or presentments are quashed for the second time, whether by ruling on a motion...
CopyCited 19 times | Published | Supreme Court of Georgia | Jun 4, 2007 | 282 Ga. 103, 2007 Fulton County D. Rep. 1723
...We further concluded that this deficient performance prejudiced the defense because the trial court had already quashed the same charge once before and, thus, "[i]f trial counsel had timely challenged [the same] count . . . of the second indictment, any future prosecution for that crime would be barred. OCGA §
17-7-53.1; [cit.]" Langlands II, supra at 801(3),
633 S.E.2d 537....
..."The denial of a plea in bar on double jeopardy grounds is directly appealable. Patterson v. State,
248 Ga. 875,
287 S.E.2d 7 (1982)." Allen v. State,
262 Ga. 240, 241,
416 S.E.2d 290, fn. 1 (
262 Ga. 240,
416 S.E.2d 290) (1992). Where, as here, the plea is based on OCGA §
17-7-53.1, "we deal not with double jeopardy, as in Patterson, but judicial economy is best served by holding that the order complained of is subject to direct appeal as a final order." Isaacs v. State,
257 Ga. 798-799,
364 S.E.2d 567 (1988). Under Patterson, Isaacs, and their progeny, an order overruling a plea in bar based on either double jeopardy or OCGA §
17-7-53.1 is directly appealable even if the plea was directed to fewer than all the counts of an indictment....
...In Langlands II, supra at 801(3),
633 S.E.2d 537, this Court clearly held that, but for trial counsel's deficient performance in failing to challenge the count of possession of a firearm by a convicted felon, "any further prosecution for that crime would be barred" pursuant to OCGA §
17-7-53.1....
...The flaw in the holding in Langlands II is this Court's failure to recognize that, upon the State's request, "[t]he trial court has discretion to order the entry of a nolle prosequi, instead of quashing the indictment, to avoid the application of OCGA §
17-7-53.1....
...mely challenged and successfully quashed. Where there is a timely special demurrer, but quashing of the indictment is neither accomplished nor absolutely required, prosecution under a corrected, *257 non-defective indictment is permissible, and OCGA §
17-7-53.1 does not require that a plea in bar be sustained....
CopyCited 12 times | Published | Supreme Court of Georgia | May 18, 2006 | 280 Ga. 794, 2006 Fulton County D. Rep. 1563
...Layman filed a *108 demurrer, however, and the trial court quashed the indictment. This Court affirmed that decision. [1] Subsequently, the State obtained two more indictments against Layman for the same crimes. Layman again demurred to the new indictments. Under OCGA §
17-7-53.1, the State would be barred from further attempts to prosecute Layman for the crimes if the indictments were quashed for a second time....
...The fact that Layman's motion to quash was pending at the time of the entry of nolle prosequi does not change the analysis. As this court stated in State v. Lejeune, "[t]he trial court has discretion to order the entry of a nolle prosequi, instead of quashing the indictment, to avoid the application of OCGA §
17-7-53.1." [3] Layman contends that if the State is allowed to use the entry of a nolle prosequi to avoid application of OCGA §
17-7-53.1, then that statute is rendered a virtual nullity because the State will always choose a nolle prosequi when a second motion to quash is filed by a defendant....
CopyCited 12 times | Published | Supreme Court of Georgia | Feb 5, 1988 | 257 Ga. 798
...Boleyn, Senior Assistant Attorneys General, Stephen B. Bright, Michael Kennedy McIntyre, for appellee. CLARKE, Presiding Justice. The sole issue in this case is whether the trial court erred in denying appellant's plea in abatement and motion for acquittal pursuant to OCGA §
17-7-53.1....
...Following a change of venue, the trial court quashed all the Seminole County indictments and a Houston County Grand Jury indicted Isaacs for six counts of murder on August 17, 1987. Isaacs filed a plea in abatement/motion for discharge and acquittal pursuant to OCGA §
17-7-53.1. He appeals the trial court's denial of the motion and plea. OCGA §
17-7-53.1 provides that if upon the return of two true bills of indictment or presentment the indictments or presentments are quashed for the second time by a ruling on a motion, demurrer, special plea or exception, or other pleading of defendant...
...he statute. Appellant claims that the application of the statute only to indictments quashed on or after July 1, 1987, deprives him of equal protection and due process in that it creates an arbitrary category of defendants who will benefit from OCGA §
17-7-53.1....
CopyCited 7 times | Published | Supreme Court of Georgia | Oct 6, 1997 | 268 Ga. 540, 97 Fulton County D. Rep. 3701
...Kirbo, III, Jon Vincent Forehand, Kirbo, McCalley & Forehand, Moultrie, James C. Bonner, Michael M. Mears, Atlanta, for Michael David Griffin. HINES, Justice. The State appeals the trial court's grant of Griffin's plea in bar to his indictment for murder. Griffin's plea was based on OCGA §
17-7-53.1 and the fact that a murder indictment against him had previously been quashed by the Superior Court of McIntosh County, as had one in the Superior Court of Thomas County....
...State,
266 Ga. 115,
464 S.E.2d 371 (1995) ( Griffin II ). [3] The Thomas County indictment was then quashed in accordance with Griffin II. Griffin was reindicted in Thomas County for the murder and kidnaping. He filed a plea in bar contending that OCGA §
17-7-53.1 prohibited any further prosecution of him for Rhames' murder. The trial court agreed. OCGA §
17-7-53.1 provides: If, upon the return of two "true bills" of indictments or presentments by a grand jury on the same offense, charge, or allegation, the indictments or presentments are quashed for the second time, whether by ruling or on a motion, demurrer, special plea or exception, or other pleading of the defendant or by the court's own motion, such actions shall be a bar to any future prosecution of such defendant for the offense, charge, or allegation. The State contends OCGA §
17-7-53.1 applies only when the quashed indictments are from the grand jury of a single county, but Griffin contends it applies to two quashed indictments from grand juries of two separate counties....
...cials offering a case for probable cause. The independent role of each county *342 is especially evident in matters of venue and jurisdiction. See Griffin II, supra at 115-117(1),
464 S.E.2d 371. This legislative intent is also shown by reading OCGA §
17-7-53.1 in conjunction with OCGA §
17-7-53....
...Both Code sections serve to protect the citizens of this state from vexatious prosecution. See Lowry v. Thompson,
53 Ga.App. 71,
184 S.E. 891 (1936). As such, they are in pari materia and should be read together and harmonized. Pafford v. Biomet,
264 Ga. 540, 542(1),
448 S.E.2d 347 (1994). OCGA §
17-7-53 provides that "[t]wo returns of `no bill' by grand juries on the same charge ... shall be a bar to any further prosecution." By using the plural "grand juries" in OCGA §
17-7-53, the General Assembly clearly intended to address a situation which included grand juries from different counties. Just as clearly, by using the designation "a grand jury" in OCGA §
17-7-53.1, the legislature intended something else. That the two statutes serve the same general purpose but in distinct ways is evident in the facts that give rise to the operation of each. Under OCGA §
17-7-53, return of two "no bills" shows that grand juries have twice rejected the conclusion that there is probable cause to believe the accused committed the crime in question. See Spears v. Johnson,
256 Ga. 518,
350 S.E.2d 468 (1986). With no probable cause shown, further prosecution suggests harassment regardless of whether prosecution has arisen in different counties. Before OCGA §
17-7-53.1 is applicable, however, grand juries have twice found there is probable cause to believe the accused committed the crime. In such a situation, harassment is far less likely as a motive for further prosecution, a difference that OCGA §
17-7-53.1 recognizes by barring prosecution only when the two indictments that have been quashed originate from the same county's grand jury....
...Griffin argues that each prosecutor represents the State, and there is no distinction to be made between the roles they play in different counties. See State v. Sallie,
206 Ga.App. 732, 736,
427 S.E.2d 11 (1992). Although each prosecutor certainly functions as an agent of the State, that does not control the issue. OCGA §
17-7-53.1 is intended to provide protection from harassing prosecution, and thus, in that context, there is reason to distinguish between prosecutorial roles in different counties, and between grand juries in different counties. As OCGA §
17-7-53.1 applies only when two quashed indictments originate in the grand jury of a single county, Griffin may be prosecuted for Rhames' murder under this indictment. Judgment reversed. All the Justices concur, except FLETCHER, P.J., SEARS and THOMPSON, JJ., who dissent. THOMPSON, Justice, dissenting. Because I cannot agree that OCGA §
17-7-53.1 applies only to quashed indictments returned by the grand jury of a single county, I must respectfully dissent. Keeping in mind that criminal statutes must be construed strictly against the State and liberally in favor of the accused, Bankston v. State,
258 Ga. 188, 190,
367 S.E.2d 36 (1988), I can only interpret OCGA §
17-7-53.1 to mean what it says: If two "true bills" of indictments are returned by a grand jury and quashed, any further prosecution is prohibited. In its introduction to OCGA §
17-7-53.1, the legislature stated that that Code section was designed: [T]o provide that if two indictments on the same offense, charge, or allegation are quashed, whether by motion, demurrer, special plea or exception, or other pleading of the de...
...bar to future prosecution for the offense, charge, or allegation.... Ga. L.1987, p. 529. Notably, the words "grand jury" do not even appear in the legislature's own description of the statute. Thus, the legislature made it clear when it enacted OCGA §
17-7-53.1 that the focus of that Code section was to be indictments, not grand juries....
...is to strain a gnat and swallow a camel. After all, whenever a statute uses a word in the singular, that word is to be interpreted as encompassing the plural, unless the plural is "expressly excluded" by the statute. OCGA §
1-3-1(d)(6). Since OCGA §
17-7-53.1 does not expressly exclude the plural use of the words "grand jury," I can only conclude that the legislature intended those words to mean "grand jury" or "grand juries." My interpretation is consistent with the legislature's goal of protecting an accused from defending multiple indictments. And it is logical. The State is a single sovereign and each and every grand jury returns its indictments on behalf of the State. See State v. Sallie,
206 Ga.App. 732, 736,
427 S.E.2d 11 (1992). To the extent that OCGA §
17-7-53.1 is designed to protect an individual from an abuse of the State's power to indict, it makes no sense to distinguish between the grand jury of one county and that of another....
...Martin,
266 Ga. 353, 354(1),
466 S.E.2d 837 (1996). However, the earlier appeal operates as the law of the case only for those issues raised and resolved therein. Whatley v. State,
218 Ga.App. 608, 611-612(2),
462 S.E.2d 779 (1995). The effect of OCGA §
17-7-53.1 was not raised and resolved in Griffin II, nor was any issue under the statute yet ripe, and any language in Griffin II contemplating future indictment is not the law of the case on this issue.
CopyCited 7 times | Published | Supreme Court of Georgia | Jun 30, 1997 | 268 Ga. 235, 97 Fulton County D. Rep. 2434
...nts; the trial court consented. On March 13, 1996, the grand jury returned a third indictment against Gourley which contained the same language found in the two previous indictments. At arraignment, Gourley filed a plea of former jeopardy under OCGA §
17-7-53.1 claiming prosecution on the third indictment is barred by the State's entry of nolle prosequi to the two previous indictments. The trial court denied Gourley's plea and he appeals. We find OCGA §
17-7-53.1 inapplicable under the facts of this case and affirm. 1. OCGA §
17-7-53.1 provides: If, upon the return of two "true bills" of indictments or presentments by a grand jury on the same offense, charge, or allegation, the indictments or presentments are quashed for the second time, whether by ruling on a motion,...
...ding of the defendant or by the court's own motion" with the State's exercise of its discretion not to further prosecute an indictment. See OCGA §
15-18-9 (authorizing State to enter nolle prosequi on terms prescribed by law). This we refuse to do. Section
17-7-53.1 acts as a bar to prosecution on a third indictment for the same offense if the trial court has quashed two prior indictments in response to specific matters raised by either the defendant or on the court's own motion. Nothing in §
17-7-53.1 evidences an intent to include actions initiated by the State in the enumerated matters giving rise to application of the statutory bar to future prosecution. Indeed, to interpret §
17-7-53.1 to bar future prosecution upon the State's entry of two nolle prosequi would require us to ignore the limiting language "motion ......
...Although two indictments had been brought against Gourley and nolle prosequi entered, neither the first nor the second indictment was quashed as a result of action by Gourley or on the court's own motion. Accordingly, the trial court correctly ruled that §
17-7-53.1 was not a statutory bar to Gourley's prosecution under the third indictment. Redding v. State,
205 Ga.App. 613(2),
423 S.E.2d 10 (1992). 2. Because we find OCGA §
17-7-53.1 inapplicable where the previous indictments are nolle prossed by the State, we do not address the State's argument that Gourley's motions to quash were not timely filed....
