GA Code § 17-7-70.1 (2021)
2021 Georgia Code|Title 17 - Criminal Procedure|Chapter 7 - Pretrial Proceedings|Article 4 - Accusations|§ 17-7-70.1. Trial Upon Accusations in Certain Felony and Misdemeanor Cases; Trial Upon Plea of Guilty or Nolo Contendere

    In felony cases involving violations of the following:   Code Sections 16-8-2, 16-8-14, 16-8-18, 16-9-1, 16-9-20, 16-9-31, 16-9-33, 16-9-37, 16-10-52, and 40-5-58;   Article 1 of Chapter 8 of Title 16, relating to theft;   Chapter 9 of Title 16, relating to forgery and fraudulent practices;   Article 3 of Chapter 10 of Title 16, relating to escape and other offenses related to confinement;   Code Section 16-11-131, relating to possession of a firearm by a convicted felon or first offender probationer; or   Code Section 16-13-30, relating to the purchase, possession, manufacture, distribution, or sale of controlled substances or marijuana,  in which defendants have either been bound over to the superior court based on a finding of probable cause pursuant to a commitment hearing under Article 2 of this chapter or have expressly or by operation of law waived a commitment hearing, the district attorney shall have authority to prefer accusations, and the defendants shall be tried on such accusations according to the same rules of substantive and procedural laws relating to defendants who have been indicted by a grand jury.      All laws relating to rights and responsibilities attendant to indicted cases shall be applicable to cases brought by accusations signed by the district attorney.   The accusation need not be supported by an affidavit except in those cases in which the defendant has not been previously arrested in conjunction with the transaction charged in the accusation or when the accusation is to be used as the basis for the issuance of an arrest warrant.   Been bound over to the superior court based on a finding of probable cause pursuant to a commitment hearing under Article 2 of this chapter;   Expressly or by operation of law waived a commitment hearing;   Been released on bond pending a commitment hearing; or   Been confined in jail for at least 45 days since his or her arrest, unless such time frame has been waived in writing by the accused.  Paragraphs (2) and (3) of subsection (a) of this Code section shall apply to accusations provided for under this subsection.      This subsection shall be repealed in its entirety on June 30, 2022.     Judges of the superior court may open their courts at any time without the presence of either a grand jury or a trial jury to receive and act upon pleas of guilty or nolo contendere in felony and misdemeanor cases. The judge of the superior court may try the issues in such cases without a jury upon an indictment or upon an accusation filed by the district attorney where the defendant has waived trial by jury.   An accusation substantially complying with the form provided in subsections (d) and (e) of Code Section 17-7-71 shall in all cases be sufficient.   The district attorney may not bring an accusation pursuant to this Code section in those cases where the grand jury has heard evidence or conducted an investigation or in which a no bill has been returned.   Notwithstanding subsections (a) through (d) of this Code section, nothing in this Code section shall affect the rights of public officials to appear before a grand jury as provided in Code Sections 45-11-4 and 45-15-11 or peace officers to appear before a grand jury as provided in Code Section 17-7-52.    (a.1) (1)As used in this subsection, the term "serious violent felony" shall have the same meaning as provided for under Code Section 17-10-6.1.   Notwithstanding any other law to the contrary, the district attorney shall have authority to prefer accusations, and the accused shall be tried on such accusations according to the same rules of substantive and procedural laws relating to defendants who have been indicted by a grand jury for any felony, other than a serious violent felony, in which an accused has:    (Code 1981, §17-7-70.1, enacted by Ga. L. 1992, p. 1808, § 1; Ga. L. 1996, p. 678, § 1; Ga. L. 1998, p. 208, § 1; Ga. L. 2012, p. 899, § 8-9/HB 1176; Ga. L. 2016, p. 186, § 7/HB 941; Ga. L. 2021, p. 423, § 3-3/HB 635.)    The 2021 amendment,  effective May 4, 2021, deleted "or" at the end of subparagraph (a)(1)(D); substituted "; or" for a period at the end of subparagraph (a)(1)(E); and added subparagraph (a)(1)(F); added "or when the accusation is to be used as the basis for the issuance of an arrest warrant" at the end of paragraph (a)(3); and substituted the existing provisions of subsection (a.1) for the former provisions, which read: "The provisions of subsection (a) of this Code section shall apply to violations of Code Section 16-13-30 whenever there has been a finding of probable cause pursuant to a commitment hearing under Article 2 of this chapter or the accused has waived either expressly or by operation of law the right to this hearing."   Editor's notes.   - Ga. L. 1996, p. 678, § 2, not codified by the General Assembly, provides that the amendment by that Act is applicable to violations occurring on or after July 1, 1996.   Ga. L. 2012, p. 899, § 9-1(a)/HB 1176, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2012, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2012, shall be governed by the statute in effect at the time of such offense and shall be considered a prior conviction for the purpose of imposing a sentence that provides for a different penalty for a subsequent conviction for the same type of offense, of whatever degree or level, pursuant to this Act."   Law reviews.   - For review of 1998 legislation relating to criminal procedure, see 15 Ga. St. U.L. Rev. 96 (1998). For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 290 (2012). For article on the 2016 amendment of this Code section, see 33 Georgia St. U.L. Rev. 79 (2016). For note, "Give It to Me, I'm Worth It: The Need to Amend Georgia's Record Restriction Statute to Provide Ex-Offenders with a Second Chance in the Employment Sector," see 52 Ga. L. Rev. 267 (2017).   JUDICIAL DECISIONS   Constitutionality.    - Substitution of accusation for indictment for the specific felonies enumerated in O.C.G.A. § 17-7-70.1 does not violate due process since statutory procedures exist to safeguard against criminal prosecution without probable cause, and to further protect all defendants equally, whether indicted or formally accused. Lamberson v. State, 265 Ga. 764, 462 S.E.2d 706 (1995).    O.C.G.A. § 17-7-70.1 was not an ex post facto law with respect to defendant charged with forgery when the defendant entered a plea of not guilty on the accusation without having first entered a written objection to the proceeding and when the defendant was arrested after the effective date of the section. Crowder v. State, 218 Ga. App. 630, 462 S.E.2d 754 (1995).   Trial on accusation preferred by district attorney.    - Felony charge of driving after having been declared a habitual violator may be tried on an accusation preferred by a district attorney rather than on an indictment returned by a grand jury. State v. Gilstrap, 230 Ga. App. 281, 495 S.E.2d 885 (1998).    Defendant charged with possession of cocaine with intent to distribute could be tried by accusation because the defendant waived the right to a grand jury indictment when the defendant posted bond following arrest. McNair v. State, 240 Ga. App. 324, 523 S.E.2d 392 (1999).    Because the defendant waived the right to a commitment hearing when the defendant posted bond, the state was authorized to proceed to trial on the accusation charging theft by taking despite the defendant's objection. Pruitt v. State, 245 Ga. App. 801, 538 S.E.2d 874 (2000).   Accusation not same as indictment.    - After 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).    Accusation was a proper charging document in a theft by receiving case, and the defendant's appellate argument that a trial court should have instructed the jury that the indictment was not evidence proving guilt failed because there was no indictment in the case, only an accusation. Brown v. State, 265 Ga. App. 613, 594 S.E.2d 770 (2004).   Waiver of indictment.    - Trial court had jurisdiction to try the defendant for the offense of theft by receiving stolen property as the criminal code permitted that offense to be tried upon accusation even when the defendant had not waived the indictment. Gerrard v. State, 252 Ga. App. 767, 556 S.E.2d 131 (2001), cert. denied, 535 U.S. 1077, 122 S. Ct. 1960, 152 L. Ed. 2d 1021 (2002).    Defendant waived the right to a commitment hearing when defendant posted bond; thus, the state was authorized to try the charge of forgery in the first degree by accusation. Watson v. State, 264 Ga. App. 41, 589 S.E.2d 867 (2003).   Indictment required.    - Defendant was initially charged by accusation with terroristic threats and aggravated stalking, which were not properly prosecuted without an indictment or a written waiver thereof pursuant to O.C.G.A. §§ 17-7-70.1 and17-7-70(a), the dismissal of the accusation after the jury was sworn and the indictment of the same charges was proper and there was no former jeopardy bar under O.C.G.A. § 16-1-8(d)(1), as the former prosecution under the indictment was void and of no effect. Armstrong v. State, 281 Ga. App. 297, 635 S.E.2d 880 (2006).   Cocaine possession.    - State was authorized to try a cocaine possession charge by accusation when there was a commitment hearing and a finding of probable cause. Brackins v. State, 249 Ga. App. 788, 549 S.E.2d 775 (2001).   Felony obstruction of officer.    - Charge of felony obstruction of an officer by accusation instead of by grand jury indictment was not authorized because of the state's failure to obtain the defendant's waiver of an indictment in writing as required by O.C.G.A. § 17-7-70. Brackins v. State, 249 Ga. App. 788, 549 S.E.2d 775 (2001).   Sentence not impacted by use or accusation rather than indictment.    - When the defendant was charged and convicted of felony theft by shoplifting, the trial court was not required to sentence the defendant as a misdemeanant simply because the state utilized an accusation rather than an indictment. Hood v. State, 223 Ga. App. 573, 479 S.E.2d 400 (1996).   When felony not one listed in statute.    - When one count of the accusation filed by the district attorney recited that it was charged under O.C.G.A. § 16-13-30, which is a felony which may not be brought by accusation pursuant to O.C.G.A. § 17-7-70 without the assent of the accused, not on record in the case, nor was it one of those felonies listed in O.C.G.A. § 17-7-70.1 which, under circumstances not present in the case, may be pursued by accusation, the count was considered by the court to be brought under O.C.G.A. § 16-13-2(b), misdemeanor possession of less than an ounce of marijuana. Chadwick v. State, 236 Ga. App. 199, 511 S.E.2d 286 (1999).   Pretrial amendment of accusation did not start new prosecution.    - Pretrial amendment of accusation did not start a new prosecution as 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).   No accusation found.    - Trial court properly denied a defendant's motion for discharge and acquittal on statutory speedy trial grounds pursuant to O.C.G.A. § 17-7-170(a) because the defendant's speedy trial demand was premature and a nullity since the "complaint" was filed after the defendant's arrest, was not an accusation pursuant to O.C.G.A. §§ 17-7-70 and17-7-70.1, and the prosecution did not proceed on the "complaint." Campbell v. State, 294 Ga. App. 166, 669 S.E.2d 190 (2008).    Cited in McBride v. State, 213 Ga. App. 857, 446 S.E.2d 193 (1994); Sanderson v. State, 217 Ga. App. 51, 456 S.E.2d 667 (1995); Ingram v. State, 224 Ga. App. 271, 480 S.E.2d 302 (1997); Singleton v. State, 240 Ga. App. 240, 522 S.E.2d 734 (1999).