GA Code § 17-7-53.1 (2021)
2021 Georgia Code|Title 17 - Criminal Procedure|Chapter 7 - Pretrial Proceedings|Article 3 - Indictments|§ 17-7-53.1. Quashing of Second Grand Jury Indictment or Presentment Bars Further Prosecution

 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, 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.    (Code 1981, §17-7-53.1, enacted by Ga. L. 1987, p. 529, § 1.)   Editor's notes.   - Ga. L. 1987, p. 529, § 2, not codified by the General Assembly provided that this Code section applies to indictments and presentments returned on or after July 1, 1987.   Law reviews.   - For annual survey on criminal law, see 64 Mercer L. Rev. 83 (2012).   JUDICIAL DECISIONS   Constitutionality.    - Ga. L. 1987, p. 529, § 2, provides that O.C.G.A. § 17-7-53.1 shall apply to indictments or presentments returned on or after July 1, 1987. Because the statute treats all persons indicted on or after July 1, 1987, alike and because the statute presents no equal protection or due process problems, constitutional claims of a defendant concerning equal protection and due process do not provide ground for relief. Isaacs v. State, 257 Ga. 798, 364 S.E.2d 567 (1988).   Double jeopardy implications.    - Retrial of a charge of possession of a firearm by a convicted felon would not itself violate double jeopardy or any other constitutional right since the right not to be prosecuted on a count which was quashed for the second time was purely statutory pursuant to O.C.G.A. § 17-7-53.1. Langlands v. State, 282 Ga. 103, 646 S.E.2d 253 (2007).    Provisions of O.C.G.A. § 17-7-53.1 do not explicitly apply to accusations. State v. Roca, 203 Ga. App. 267, 416 S.E.2d 836 (1992).   O.C.G.A.    § 17-7-53.1 applies when quashed indictments originate in same county. - O.C.G.A. § 17-7-53.1 applies only when two quashed indictments originate in the grand jury of a single county; thus, the defendant could be prosecuted under a second indictment in a county even though the indictments had previously been quashed in that county and a second county. State v. Griffin, 268 Ga. 540, 491 S.E.2d 340 (1997).   Indictments returned before effective date of section.    - Trial court erroneously applied O.C.G.A. § 17-7-53.1 to three indictments returned before the effective date of the statute, even though one of the indictments was returned after the effective date. State v. Smith, 187 Ga. App. 249, 370 S.E.2d 15 (1988).   Section contemplates actual quashing of two prior indictments.    - By the statute's terms, O.C.G.A. § 17-7-53.1 contemplates the trial court's actual quashing of two prior indictments, not the trial court's mere denial of two prior special demurrers. Smith v. State, 198 Ga. App. 647, 402 S.E.2d 738 (1991).    When the defendant failed to include a record of the first and second indictments, there was no basis for the appellate court to determine whether those indictments were subject to a motion to quash; if the indictments were not quashed, the protections of the statute were not triggered. Hughes v. State, 266 Ga. App. 652, 598 S.E.2d 43 (2004).   O.C.G.A.    § 17-7-53.1 applies when quashed indictments were defective. - When the defendant was indicted for vehicular homicide for the third time following the quashing of two prior indictments which cited the wrong code subsection, the appellate court upheld application of O.C.G.A. § 17-7-53.1, holding that whether the prior indictments were sufficient to withstand demurrer was irrelevant. State v. Dorsey, 251 Ga. App. 788, 555 S.E.2d 141 (2001).   Nolle prossed entries.    - Fact that state entered a nolle prosequi as to the second indictment did not preclude prosecution of the defendant under a third indictment for the same offense; the bar under O.C.G.A. § 17-7-53.1 follows actions adverse to the state putting it out of court. Redding v. State, 205 Ga. App. 613, 423 S.E.2d 10, cert. denied, 205 Ga. App. 901, 423 S.E.2d 10 (1992); Gourley v. State, 268 Ga. 235, 486 S.E.2d 342 (1997).    When a trial court entered an order of nolle prosequi on a first indictment after a second indictment had been filed, the court's granting of the defendant's general demurrer on the second indictment was the only action which fell within the dictates of O.C.G.A. § 17-7-53.1, and the trial court correctly held that there was no statutory bar to the defendant's prosecution under a third indictment. Gamble v. State, 235 Ga. App. 777, 510 S.E.2d 69 (1998).    Since the first indictment against the defendant was quashed and the state later initiated a nolle prosequi order regarding a second indictment, which the trial court properly granted in the court's discretion, the entry of the nolle prosequi avoided a quashing of the second indictment such that further prosecution under a third indictment was not barred by O.C.G.A. § 17-7-53.1, which only applied when a trial court quashed two prior indictments; accordingly, the trial court properly denied the defendant's plea of former jeopardy under O.C.G.A. § 17-7-53.1. State v. Lejeune, 276 Ga. 179, 576 S.E.2d 888 (2003).    Despite the order of nolle prosequi entered as to a first indictment, the defendant would still be subject to reindictment, yet, under O.C.G.A. § 17-7-53.1, the defendant was not subject to reindictment because the first and second indictments against the defendant were quashed. State v. Dempsey, 290 Ga. 763, 727 S.E.2d 670 (2012).    Trial court did not abuse the court's discretion by granting the nolle prosequi as to a first indictment nor did the court err in denying the defendant's plea of former jeopardy and motion to dismiss a third indictment because under O.C.G.A. § 17-8-3, the state did not need defendant's consent to obtain an order of nolle prosequi before the case was submitted to a jury and the court had the discretion to order the nolle prosequi, instead of quashing the indictment to avoid the application of O.C.G.A. § 17-7-53.1. Blanton v. State, 324 Ga. App. 610, 751 S.E.2d 431 (2013).    Entries of nolle prosequi do not trigger the bar to prosecution in O.C.G.A. § 17-7-53.1. Blanton v. State, 324 Ga. App. 610, 751 S.E.2d 431 (2013).    Nothing in O.C.G.A. § 17-7-53.1 evidences an intent by the Georgia General Assembly to include actions initiated by the state in the enumerated matters giving rise to application of the statutory bar to future prosecution. Blanton v. State, 324 Ga. App. 610, 751 S.E.2d 431 (2013).   Indictment quashed orally.    - When the trial court orally quashed two previous indictments on the same charge and refused to reduce the order to writing, a third indictment was still barred. Evans v. State, 217 Ga. App. 548, 458 S.E.2d 357 (1995).   Accusation not same as indictment.    - When the trial court quashed an indictment and a later accusation, both of which charged the defendant with misdemeanors, due to the state's failure to comply with O.C.G.A. § 17-7-52, O.C.G.A. § 17-7-70.1 did not make a quashed accusation similar or equivalent to an indictment for the purposes of the prosecutory bar under O.C.G.A. § 17-7-53.1. Additionally, § 17-7-70.1 relates primarily to felonies charged by accusation, and the district attorney could not bring the accusation, as was required for § 17-7-70.1, due to the fact that the grand jury heard evidence in the case. State v. Allen, 262 Ga. App. 724, 586 S.E.2d 378 (2003).   Plea in bar properly denied.    - Because an order quashing a count of possession of a firearm by a convicted felon for the second time was neither accomplished nor absolutely required, prosecution under a corrected, non-defective indictment was allowed; thus, the trial court did not err in denying a plea in bar as to the charge. Langlands v. State, 282 Ga. 103, 646 S.E.2d 253 (2007).   Ineffective assistance for failure to challenge indictment.    - Defense counsel's performance was deficient in failing to challenge the defendant's charge of possession of a firearm by a convicted felon on the basis that the indictment erroneously alleged that the crime was committed on a date after the indictment was issued; since this was the second time the defendant had been indicted for that offense, if trial counsel had timely challenged that count, any future prosecution for that crime would have been barred, and thus prejudice to the defendant was shown. Langlands v. State, 280 Ga. 799, 633 S.E.2d 537 (2006).   Failure to challenge indictment based on grand jury composition not ineffective assistance.    - Trial counsel was not ineffective for failing to move to quash the indictment or to arrest judgment because even if a timely motion to quash had been filed, the indictment likely would have been dismissed because a convicted felon served on the grand jury in violation of O.C.G.A. § 15-12-60, however, the state would have been free to obtain the identical indictment from a properly constituted grand jury. Brooks v. State, 332 Ga. App. 396, 772 S.E.2d 838 (2015), cert. denied, No. S15C1548, 2015 Ga. LEXIS 573 (Ga. 2015).    Cited in Smith v. State, 297 Ga. App. 300, 676 S.E.2d 750 (2009); Metts v. State, 297 Ga. App. 330, 677 S.E.2d 377 (2009); Martin v. State, 306 Ga. 747, 833 S.E.2d 122 (2019); State v. Heath, 308 Ga. 836, 843 S.E.2d 801 (2020).