GA Court of Appeals Holds Verbal Waiver of Indictment Insufficient

In Martinez v. State, the Georgia Court of Appeals reversed the defendant’s aggravated assault conviction, holding that the verbal waiver of his right to a grand jury indictment was insufficient. The Court noted that O.C.G.A. § 17-7-70 requires a defendant’s waiver of the right to indictment to be in writing. The Court affirmed Martinez’s convictions for simple battery and hindering an officer as those are misdemeanor offenses for which he did not have a right to a grand jury indictment.

The State introduced evidence that Martinez hit the victim in the eye and repeatedly punched him in the stomach. The victim also sustained a stab wound to the left side of his abdomen. Martinez was arrested and subsequently indicted for aggravated assault, battery, and hindering an officer.

The prosecutor informed the trial court that the State intended to try Martinez by accusation because the language of the indictment was based on the use of a knife and the victim could not identify the object that was used in the assault. After conferring with his defense attorney, Martinez verbally waived his right to reindictment and agreed to proceed on the accusation. The jury then convicted Martinez of aggravated assault, simple battery, and hindering an officer.

The Court of Appeals reversed the conviction for aggravated assault, holding that the trial court erred in accepting his waiver of his right to a Grand Jury indictment because it was oral and not in writing. Pursuant to O.C.G.A. 17-7-70.1(a)(1), aggravated assault is not one of the felony offenses for which a defendant may be tried without an indictment or a written waiver. Thus, the State was only authorized to try Martinez by accusation if he waived indictment by the grand jury in writing. His verbal waiver was not sufficient and the Court of Appeals held that, without a written waiver, the trial court lacked jurisdiction to try him on the aggravated assault offense.