Affidavit not required when defendant previously arrested.

- Accusation need not be supported by an affidavit when the defendant has been previously arrested in conjunction with the transaction charged in the accusation. Manning v. State, 175 Ga. App. 738, 334 S.E.2d 338 (1985); Military Circle Pet Ctr. No. 94, Inc. v. State, 181 Ga. App. 657, 353 S.E.2d 555, rev'd on other grounds, 257 Ga. 388, 360 S.E.2d 248, vacated in part on other grounds, 184 Ga. App. 805, 363 S.E.2d 360 (1987).

Affidavit not required for peripheral accusation.

- When an accusation of telephone call harassment was not used as the basis for an arrest warrant issuance, an affidavit was not required for it. Williams v. State, 206 Ga. App. 533, 426 S.E.2d 32 (1992).

Affidavit not required when appellant was not arrested.

- No affidavit supporting an accusation filed against an appellant was required under O.C.G.A. § 17-7-71(a) when the appellant was not arrested for the charged offenses, and the accusation was not intended or used as the basis for the issuance of a warrant for the appellant's arrest. Blankenship v. State, 208 Ga. App. 710, 431 S.E.2d 481 (1993).

No affidavit required.

- Trial court did not err in denying the defendant's request to charge the jury on the solicitor's duty to file an affidavit in support of the accusation because O.C.G.A. § 17-7-71(a) clearly stated that an affidavit to support the accusation was required only when the accusation was to be used as the basis for the issuance of an arrest warrant and the record reflected no evidence that a warrant was issued for the defendant's arrest; thus, the requested instruction was not applicable or required. King v. State, 300 Ga. 180, 794 S.E.2d 110 (2016).

Filing date of supporting affidavit not determinative of timeliness of prosecution.

- Prosecution against the defendant for simple battery was timely filed within two years, pursuant to O.C.G.A. § 17-3-1(d), since the accusation was filed within the time period, which was deemed to be the commencement of the matter pursuant to O.C.G.A. § 16-1-3(14); the fact that the supporting affidavit was filed six days after the limitations period ran did not affect the timeliness of the action pursuant to O.C.G.A. § 17-7-71(a) because that document was for the issuance of an arrest warrant. Cochran v. State, 259 Ga. App. 130, 575 S.E.2d 901 (2003).

Right improperly invoked.

- Trial court properly denied the defendant's motion for discharge and acquittal based on speedy trial grounds because the defendant did not properly assert the statutory right since the demand did not meet the minimum acceptable standard as neither the indictment number or the charges against the defendant were included. Bonakies v. State, 263 Ga. App. 812, 589 S.E.2d 573 (2003).

Omission of some of statutory language.

- Accusation charging driving under the influence and reciting the proper statute, but omitting "less safe driver" language in the statute, was sufficient. Broski v. State, 196 Ga. App. 116, 395 S.E.2d 317 (1990).

Accusation referring to a "masturbation for hire" and referencing O.C.G.A. § 17-7-71 sufficiently charged the defendant. Pak v. State, 206 Ga. App. 78, 424 S.E.2d 292 (1992).

Accusation that omitted certain statutory language but that apprised the defendant that the defendant was being charged with driving with an unlawful alcohol concentration of 0.10 grams or more within three hours of operating a vehicle was sufficient. Lewis v. State, 215 Ga. App. 486, 451 S.E.2d 116 (1994).

Accusation charging reckless driving was sufficient, notwithstanding the contention that the accusation did not include the essential element of disregard for the safety of persons or property, since it was so plain that the nature of the offense was easily understood when the accusation charged that the defendant unlawfully drove a motor vehicle on a public road in a reckless manner. Freeman v. State, 234 Ga. App. 110, 505 S.E.2d 836 (1998).

Amendment of accusation.

- In a prosecution for driving under the influence of alcohol, the state was entitled, under O.C.G.A. § 17-7-71 (f), to amend the accusation after the defendant entered the defendant's plea but before jury selection commenced in order to charge the correct date of the offense. Melton v. State, 174 Ga. App. 461, 330 S.E.2d 398 (1985).

Trial court did not err in denying the motion for a continuance when no showing was made to suggest that the defendant's ability to present a defense was in any way impeded by a change of the date of the alleged offense by one day. Melton v. State, 174 Ga. App. 461, 330 S.E.2d 398 (1985).

Trial court did not err in refusing to dismiss uniform traffic citations issued within two years of the date the offenses occurred, but later amended by the state, on the ground that the statute of limitation expired; the amended accusations did not constitute the commencement of a new prosecution and there had been no final disposition of the previously filed accusations. Prindle v. State, 240 Ga. App. 461, 523 S.E.2d 44 (1999).

Defendant could not complain that the defendant was required to answer to a charge that had been amended from the original charge filed against the defendant as the defendant was notified of the change, defendant was given a continuance to prepare for the amended charge, the amended charge arose out of the same conduct as the original charge, the defendant did not object but acquiesced in going forward on the amended accusation with the jury that had been impaneled, and the defendant's earlier jury trial had not started because the jury had been impaneled, but had not been sworn. Lunsford v. State, 262 Ga. App. 635, 585 S.E.2d 923 (2003).

Pretrial amendment of an accusation did not start a new prosecution, the previous arraignment of the defendant was sufficient, and jeopardy attached before the nolle prosequi was entered over the defendant's objection; consequently, a later prosecution of the offenses charged in the accusation was barred by former jeopardy. Smith v. State, 279 Ga. 396, 614 S.E.2d 79 (2005).

Because the state amended the state's accusation against the defendant before trial to include an additional charge of disorderly conduct, in violation of O.C.G.A. § 16-11-39, O.C.G.A. § 17-7-71(f) required the trial court to grant the defendant's request for a continuance, and erred when the court failed to do so; moreover, the defendant had no pretrial notice of the need to defend against a tumultuous act that did not physically harm the spouse. Martin v. State, 278 Ga. App. 465, 629 S.E.2d 134 (2006).

Amendment of an accusation to clarify that the defendant made contact with the victim's breast, as opposed to the victim's "intimate body parts", was timely under O.C.G.A. § 17-7-71(f) when the state filed the amendment several days before trial, the amendment was served on defense counsel, and the trial court read the amended accusation in open court before trial commenced. Furthermore, the defendant was not surprised by the amendment, and the defendant did not show that the amendment impeded the defendant's ability to present a defense. Romo v. State, 288 Ga. App. 237, 653 S.E.2d 832 (2007).

When the defendant was prosecuted for serving alcohol to a minor, under O.C.G.A. § 3-3-23(a)(1), the defendant did not show the accusation was improperly amended in violation of O.C.G.A. § 17-7-71(f) because: (1) it was not shown that the accusation was amended after trial commenced; and (2) while it was unknown if the amended accusation was served on the defendant, the amendment, deleting the name of an undercover officer to whom alcohol was allegedly served, did not surprise the defendant, given extensive testimony that had been given about the undercover operation resulting in the charge against the defendant. Butler v. State, 298 Ga. App. 129, 679 S.E.2d 361 (2009).

State was not barred from filing a formal accusation charging new violations even though the defendant was issued Uniform Traffic Citations (UTCs) at a traffic stop following a collision because the differences between the charges made in the UTCs and the charges set forth in the accusation did not affect the accusation's validity. Sevostiyanova v. State, 313 Ga. App. 729, 722 S.E.2d 333, cert. denied, No. S12C0968, 2012 Ga. LEXIS 612 (Ga. 2012).

Amendment to correct typographical error.

- Even if the correction of a typographical error in the original accusation was considered an amendment, such a change was authorized by O.C.G.A. § 17-7-71. Anderson v. State, 211 Ga. App. 2, 438 S.E.2d 376 (1993).

Amended accusation, by correcting a typographical error with respect to the offense date, did not charge an offense beyond the two year statute of limitation for prosecuting misdemeanors because the offense date was not a material element of the offense charged. Thomas v. State, 233 Ga. App. 224, 504 S.E.2d 59 (1998).

Amendment filed after two-year period in

§ 17-3-1(d). - If an original accusation was timely filed and valid within the meaning of O.C.G.A. § 17-7-71(c) and was subsequently amended after the two-year period of limitations set forth in O.C.G.A. § 17-3-1(d), the amendment did not negate the prior valid commencement of the prosecution which occurred before the expiration of the operative statute of limitations. Freeman v. State, 194 Ga. App. 905, 392 S.E.2d 330 (1990).

Right to continuance after amendment.

- Trial court was not required to warn defendant that the defendant was entitled to a continuance based on the state's filing of an amended information as that right only applied if a defendant was pursuing a right to a trial and the defendant waived that right and entered guilty pleas to the charges. Payne v. State, 276 Ga. App. 577, 623 S.E.2d 668 (2005).

Superseding indictment not barred.

- Timely accusation charging the defendant with misdemeanors, which was later followed by an indictment that included the misdemeanor charges and a felony charge filed more than two years after the commission of the crimes, was not barred by the statute of limitations because the indictment merely duplicated the original misdemeanor charges and the felony indictment was within the applicable statute of limitation period of four years. Wooten v. State, 240 Ga. App. 725, 524 S.E.2d 776 (1999).

Accusation based on arrest warrant or supported by affidavit not required.

- Simple battery accusation was not invalid, although an arrest warrant on the same charge had been dismissed and the accusation was not supported by an affidavit. State v. Litz, 210 Ga. App. 200, 435 S.E.2d 724 (1993).

Uniform traffic citation.

- Oath and attestation upon the uniform traffic citation issued under O.C.G.A. § 40-13-1 is apparently an "affidavit," developed by the commissioner of public safety for the prosecution of traffic offense cases; this "ticket" alone suffices to prosecute a traffic violation. But when the arresting officer neglects to sign, under oath and before an authorized magistrate, the "arresting officer's certification" on the citation attesting that the officer reasonably believed the defendant committed the offense, prosecution by formal accusation, pursuant to O.C.G.A. § 17-7-71, is the correct procedure. Evans v. State, 168 Ga. App. 716, 310 S.E.2d 3 (1983).

Prosecution does not need to proceed upon the uniform traffic citation form that has initially been issued and the prosecuting attorney has authority to file a subsequent formal accusation. State v. Doyal, 184 Ga. App. 126, 361 S.E.2d 17 (1987).

Defendant's argument that the state was not entitled to amend a uniform traffic citation to allege an accusation not contained in the original citation was inapplicable to the defendant's case as the state's original uniform traffic citation did not have to be amended since the citation did not improperly allege multiple offenses; rather, the state's reference to the statute violated, which contained multiple subsections, did not refer to multiple offenses, but referred to one offense and multiple ways to prove the offenses. Additionally, the uniform traffic citation issued to the defendant was not required to follow any sort of "mandatory" accusation as statutory law did not require the citation to be mandatory as to form. Slinkard v. State, 259 Ga. App. 755, 577 S.E.2d 825 (2003).

Trial court did not err in denying a defendant's motion to dismiss because even though a uniform traffic citation (UTC) did not list the defendant's name in the correct order and did not contain a date for the defendant's initial court appearance, the defendant was not prejudiced; the defendant was aware of the charge against the defendant and appeared at all scheduled court dates. Regardless of whether O.C.G.A. § 17-7-71(b)(1) allowed amendment to portions of a UTC other than the allegation, the state's accusation was sufficient to allow prosecution of the defendant for violating O.C.G.A. § 40-6-98 because O.C.G.A. § 17-7-71(b)(1) allowed misdemeanor cases to proceed upon an accusation framed and signed by the prosecuting attorney. Switlick v. State, 295 Ga. App. 849, 673 S.E.2d 323 (2009).

Improper charge of defendants under uniform traffic citation.

- Appellate court reversed the trial court's judgment convicting defendants of violating O.C.G.A. § 4-3-3 by allowing livestock to roam at large because § 4-3-3 was not a penal statute and the defendants were improperly charged by use of a uniform traffic citation in violation of O.C.G.A. § 17-7-71. Cotton v. State, 263 Ga. App. 843, 589 S.E.2d 610 (2003).

Indictment for misdemeanor battery sufficient.

- Trial court correctly denied the defendant's motion to quash a count alleging misdemeanor battery because the allegations of the count were not too vague, uncertain, or unclear as contended by the defendant since the allegations met the language of the statute and were sufficiently technical and correct; further, the specific bodily harm did not have to be alleged. State v. Tate, 262 Ga. App. 311, 585 S.E.2d 224 (2003).

Accusation for battery, family violence, and criminal trespass that alleged that the defendant injured the victim by striking the victim, causing a visibly bloody lip, and that the defendant knocked a hole in the victim's closet door, was sufficient under O.C.G.A. § 17-7-71(c). There was no requirement that the accusation state the instrumentality used by the defendant because the instrumentality was not an element of any of the charged crimes. State v. Leatherwood, 326 Ga. App. 730, 757 S.E.2d 434 (2014).

Accusation misstated defendant's age.

- Accusation that charged the defendant, age 19, with being a minor under 18 while driving with an alcohol concentration of .02 or more, met the requirements of O.C.G.A. § 17-7-71(c) because the accusation cited O.C.G.A. § 40-6-391, the correct statute under which the defendant was charged, and the defendant could not be surprised with proof of the defendant's age. Mills v. State, 271 Ga. App. 506, 610 S.E.2d 80 (2004).

Double jeopardy did not bar prosecution on new accusation.

- Prosecution of the 2015 charge against the defendant was not barred on the ground of double jeopardy or failure to prosecute timely because the defendant made no showing that the 2015 charge arose from the illegal storage of the rubbish and no additional items at issue in the 2010 charge. King v. State, 300 Ga. 180, 794 S.E.2d 110 (2016).

There was no error in trial court's denial of motion for directed verdict of acquittal based upon the assertion that the probata did not conform to the allegata, in that the original accusation charged that the defendant received money from a prostitute without lawful consideration on February 23, 1983, but the evidence at trial showed that the offense occurred on February 2, 1983, because time is not a material element of the offense of pimping and the state proved that the offense occurred within the statute of limitation prior to the return of the indictment. Angevine v. State, 171 Ga. App. 658, 320 S.E.2d 578 (1984).

State failed to prove a tolling of the statute of limitation by means of an amendment to an earlier accusation since there was no showing that the crimes charged in the earlier accusation arose out of the same conduct which gave rise to the offenses alleged in the subsequent accusation. Tarver v. State, 198 Ga. App. 634, 402 S.E.2d 365 (1991).

Charging instrument defective.

- Trial court's denial of a defendant's general demurrer to a charge against the defendant of violation of a family violence order, in violation of O.C.G.A. § 16-5-95(a), was error as the accusation failed to state any specific acts that violated any specific terms of a family violence order, such that the accusation failed to set out the essential elements of the crime or to apprise the defendant properly of the charge pursuant to O.C.G.A. § 17-7-71(c). Newsome v. State, 296 Ga. App. 490, 675 S.E.2d 229 (2009).

Charging instrument not defective.

- Accusation was not fatally defective because the accusation informed the defendants of the charges against the defendants and protected the defendants against another prosecution for the same offense, and the defendants could not admit that the defendants passed in an area defined by markings as a no-passing zone without being guilty of the crime charged. Moreover, to the extent that the defendants' attack on the accusation could be read as a special demurrer, seeking greater specificity, it was waived by the defendants' failure to raise the issue within ten days after the defendants pled to the accusation. Haynes-Turner v. State, 289 Ga. App. 652, 658 S.E.2d 203 (2008).

Accusation charging a defendant with causing the unjustifiable physical pain or suffering of a dog by failing to provide adequate food or water or medical care was sufficient to charge the defendant with cruelty to animals pursuant to O.C.G.A. § 16-12-4. Ford v. State, 306 Ga. App. 606, 703 S.E.2d 71 (2010).

Harmless error analysis.

- Even if the failure to name the specific drug involved was error, applying the harmless error standard on appeal, as the defendant was a less than safe driver because the defendant was under the influence of drugs, the defendant was in the best position to know which drug or drugs the defendant ingested, therefore the defendant was not prejudiced or misled and there was no violation of O.C.G.A. § 17-7-71(c). Gantt v. State, 263 Ga. App. 102, 587 S.E.2d 255 (2003).

Cited in Wehunt v. State, 168 Ga. App. 353, 309 S.E.2d 143 (1983); Mash v. State, 168 Ga. App. 491, 309 S.E.2d 673 (1983); Daniel v. State, 169 Ga. App. 722, 314 S.E.2d 737 (1984); Fuller v. State, 169 Ga. App. 468, 313 S.E.2d 745 (1984); Russell v. State, 174 Ga. App. 1, 329 S.E.2d 168 (1985); King v. State, 176 Ga. App. 137, 335 S.E.2d 439 (1985); Weaver v. State, 179 Ga. App. 641, 347 S.E.2d 295 (1986); Miller v. State, 179 Ga. App. 217, 345 S.E.2d 909 (1986); State v. Horne, 181 Ga. App. 207, 351 S.E.2d 730 (1986); State v. Military Circle Pet Ctr. No. 94, Inc., 257 Ga. 388, 360 S.E.2d 248 (1987); Robinson v. State, 182 Ga. App. 423, 356 S.E.2d 55 (1987); Abelman v. State, 185 Ga. App. 278, 363 S.E.2d 764 (1987); Gibson v. State, 187 Ga. App. 769, 371 S.E.2d 413 (1988); Manley v. State, 187 Ga. App. 773, 371 S.E.2d 438 (1988); Ward v. State, 188 Ga. App. 372, 373 S.E.2d 65 (1988); Burks v. State, 195 Ga. App. 516, 394 S.E.2d 136 (1990); Martin v. State, 195 Ga. App. 548, 394 S.E.2d 551 (1990); Dixon v. State, 196 Ga. App. 15, 395 S.E.2d 577 (1990); State v. Scoggins, 196 Ga. App. 781, 397 S.E.2d 50 (1990); Reed v. State, 205 Ga. App. 209, 422 S.E.2d 15 (1992); State v. Rustin, 208 Ga. App. 431, 430 S.E.2d 765 (1993); Morgan v. State, 212 Ga. App. 394, 442 S.E.2d 257 (1994); Hassell v. State, 212 Ga. App. 432, 442 S.E.2d 261 (1994); Sanderson v. State, 217 Ga. App. 51, 456 S.E.2d 667 (1995); Wade v. State, 223 Ga. App. 222, 477 S.E.2d 328 (1996); Smith v. State, 239 Ga. App. 515, 521 S.E.2d 450 (1999); Wrigley v. State, 248 Ga. App. 387, 546 S.E.2d 794 (2001); Brown v. State, 246 Ga. App. 517, 541 S.E.2d 112 (2000); Beaman v. City of Peachtree City, 256 Ga. App. 62, 567 S.E.2d 715 (2002); Kall v. State, 257 Ga. App. 527, 571 S.E.2d 520 (2002); Allman v. State, 258 Ga. App. 792, 575 S.E.2d 710 (2002); Martinez v. State, 322 Ga. App. 63, 743 S.E.2d 621 (2013).

Uniform traffic citation.

- O.C.G.A. § 17-7-71(b) specifically permits use of an uniform traffic citation in all misdemeanor cases involving vehicle dimensions and laws concerning motor common carriers and motor contract carriers, which would include violations of former § 46-7-61 to the extent that such violations were misdemeanors. 1981 Op. Att'y Gen. No. U81-17.

Nontraffic misdemeanor offenses are not properly chargeable on uniform traffic citation and complaint form but instead should be charged on an accusation. 1982 Op. Att'y Gen. No. U82-26.

Discretion of district attorney.

- Decision as to whether to present an indictment to the grand jury lies within the discretion of the district attorney. There is misconduct only if the decision concerning prosecution is based upon some constitutionally impermissible reason such as race, religion, or the exercise of constitutional rights. 1988 Op. Att'y Gen. No. U88-25.

Motion to nolle prosequi.

- Once an indictment or accusation has been filed, a district attorney's motion to nolle prosequi or dead docket requires the consent of the court. If the trial court refuses to grant the district attorney's motion to nolle prosequi or dead docket the case, the district attorney is not thereby disqualified. 1988 Op. Att'y Gen. No. U88-25.

Effect of pretrial diversion program.

- If an indictment or accusation has been filed against a person who successfully completes a pretrial diversion program, consent of the court is required before the criminal charge can be dismissed. If the person completes the pretrial diversion program prior to the filing of an indictment or accusation, consent of the court is not required. 1988 Op. Att'y Gen. No. U88-25.

Am. Jur. 2d.

- 41 Am. Jur. 2d, Indictments and Informations, § 1 et seq.

C.J.S.

- 42 C.J.S., Indictments and Informations, §§ 3, 4.