Funk v. State
321 Ga. App. 737
Ga. Ct. App.2013Background
- Funk was indicted three times for the same offenses after two prior nolle prosequis were approved.
- The State earlier filed nolle prosequi on the first indictment and obtained court approval.
- Subsequent indictments charging the same offenses were refiled after those nolle prosequis.
- Funk filed demurrers and a plea in abatement in connection with the later indictments.
- The issue is whether two prior nolle prosequis bar future prosecution under OCGA § 17-7-53.1, and whether the trial court properly denied the plea in abatement.
- The opinion holds that the trial court’s denial was correct, citing analogous precedents establishing court discretion to enter nol pros to avoid § 17-7-53.1 application.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether two nolle prosequis bar further prosecution under OCGA § 17-7-53.1 | Funk argues nolle prosequi entries should trigger the bar | State contends discretion to enter nolle avoids the bar | No error; assignment affirmed |
Key Cases Cited
- Layman v. State, 280 Ga. 792 (Ga. 2006) (nolle prosequi can avoid 17-7-53.1 applicability)
- State v. Lejeune, 276 Ga. 179 (Ga. 2003) (trial court may order nolle prosequi to avoid 17-7-53.1)
- Shane v. State, 320 Ga. App. 1 (Ga. App. 2013) (supports discretionary entry of nol pros)