In Shane v. State, the Georgia Court of Appeals held that the trial court did not abuse its discretion when it allowed the State to submit a nolle prosequi order instead of ruling on the defendant’s timely filed special demurrer.
James Edward Shane was indicted on four counts of aggravated child molestation and two counts of child molestation for acts the State alleged occurred between June 1, 2010 and May 25, 2011. Shane filed a timely special demurrer, claiming that the date range provided by the State was too broad. In fact, the State conceded during a hearing on Shane’s demurrer that Shane had actually been incarcerated for several months during the time period alleged in the indictment. Moreover, on the morning of the hearing, the State presented a new indictment to the grand jury alleging a more narrow range of dates.
Shane argued that his indictment was flawed because, under Georgia case law, “if an indictment alleges that a crime occurred between two particular dates, and if evidence presented to the trial court shows that the State can reasonably narrow the range of dates during which the crime is alleged to have occurred, the indictment is subject to a special demurrer.” State v. Layman, 279 Ga. 340, 613 S.E.2d 639 (2005). Thus, Shane claimed his demurrer should have been granted.
Rather than quash the defective indictment, the trial court deferred its judgment on the demurrer and permitted the State to present a nolle prosequi order the next day. The State claimed it made this request to keep Shane from being released on bond. Additionally, the State argued that if the trial court quashed the indictment, the State would only have one other opportunity to re-indict Shane for the alleged sex crimes. Under O.C.G.A. § 17-7-53.1, if two indictments are quashed by the court, the State is forever barred from re-indicting the case. Thus, if the court quashed the indictment and a defect arose in the second indictment, the State would potentially be prohibited from prosecuting Shane.
In allowing the State to enter a nolle prosequi order, the trial court relied on Layman v. State, 280 Ga. 794, 631 S.E.2d 107 (2006), indicating its actions were proper as there was no allegation of abuse by the State.
On appeal, Shane relied on State v. Dempsey, 290 Ga. 763, 727 S.E.2d 670 (2012) in arguing that the trial court should have granted his meritorious demurrer instead of allowing the State to enter a nolle prosequi order. In Dempsey, the Georgia Supreme Court held that the trial court improperly denied the defendant’s motion to quash (and allowed the State to submit a nolle prosequi) in a case where an indictment was brought before an illegally constituted grand jury.
The Georgia Court of Appeals distinguished Dempsey by noting that the trial court in that case made a legal error when denying the defendant’s motion to quash by erroneously concluding that the defendant’s motion was untimely. In Shane’s case, the Court held that the trial court made no legal error by simply deferring its ruling on Shane’s motion until after the State entered its nolle prosequi order. The Court held that the trial court has the discretion to refuse to quash an indictment and allow the entry of a nolle prosequi order in order to avoid the application of O.C.G.A. § 17-7-53.1 even when the defendant’s motion is timely filed and pending before the court.
This decision is a major blow to Georgia criminal defense lawyers who rely on these demurrers as a tool to prohibit successive re-indictments. The court’s ruling could potentially result in a universal practice of trial courts deferring ruling on demurrers in order to allow the State to nolle pros the charges. This would effectively render O.C.G.A. § 17-7-53.1 meaningless and allow the State to present defective indictments, one after the next, without regard to the limits imposed by the statute.
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