S03G0114. CARLISLE v. THE STATE.
S03G0114
Supreme Court of Georgia
DECIDED SEPTEMBER 15, 2003.
(586 SE2d 240)
THOMPSON, Justice.
While there may be circumstances under which a trial court could fashion such an agreement into a proper child support award, with appropriate sаfeguards to both provide for the adequate support for the child and insure compliance with
Accordingly, we find that the final decree did not make a valid child support award and reverse and remand the case to the trial court with direction that an order consistent with the requirements of
Judgment reversed and remanded with direction. All the Justices сoncur.
DECIDED SEPTEMBER 15, 2003.
Thomas F. Tierney, James F. Baker, for appellant.
Benjamin F. Windham, for appellee.
THOMPSON, Justice.
We granted certiorari to the Court of Appeals in Carlisle v. State, 257 Ga. App. 282 (570 SE2d 616) (2002), to address an issue of first impression, namely whether certain criminal charges which had been the subject of a previous order of nolle prosequi may be revived where those charges have not been reindicted, the term of court in which the nolle pros was entered has expired without the trial court having vacated its entry of the order, and the statute of limitation for prosecution of those offenses has run. Under the circumstances of this cаse, we hold that the trial court lacked jurisdiction to try Carlisle on the counts of the indictment which had been nolle prossed,
In 1997 an 11-count indictment was returned against Janice Marie Carlisle, charging her, inter alia, with stalking, aggravated stalking, and various other felony offenses. Several months later, she entered a рlea to two counts of stalking and two counts of aggravated stalking under North Carolina v. Alford, 400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970). At the same time, the State tendered for nolle prosequi the remaining seven counts, and the trial court granted the request.1
In 1999 Carlisle filed a petition for writ of habeas corpus challenging the voluntariness of her plea. The writ was granted on the basis that she lacked the mental capacity to intelligently, freely, and voluntarily enter her plea. The State appealed, challenging only the voluntariness of the plea. We affirmed the habeas court‘s ruling on the only ground raised – that Carlisle‘s mental disorder and lack of medication prevented her from knowingly and voluntarily entering her plea. Wetherington v. Carlisle, 273 Ga. 854 (547 SE2d 559) (2001).
When the case was remanded for trial, Carlisle filed a motion to limit trial to the four counts which were the subjеct of her plea, and not the seven counts which had been nolle prossed (by now, the statute of limitation had run on the seven counts). The motion was denied, and a notice of appeal was filed. Carlisle then filed a plea of former jeopardy, which was also denied. The Court of Appeals grаnted an emergency motion, allowed the appeal of the first order to proceed, and affirmed, holding that Carlisle may be tried on all 11 counts оf the original indictment. Carlisle, supra.
“When the nolle prosequi was entered . . . the prosecution was at an end, and all the incidents to it came to an end (cit.), including most оbviously the right of the State to try the defendant upon [those charges].” State v. Sheahan, 217 Ga. App. 26, 27 (2) (456 SE2d 615) (1995). The State, however, is not without recourse to revive such prosecutions under cеrtain circumstances. An order of nolle prosequi may be vacated by the court in the same term of court in which it was rendered where the State has demonstrated a meritorious reason and there is no prejudice to the accused which would amount to an abuse of the court‘s discretion. Buice v. State, 272 Ga. 323 (528 SE2d 788) (2000).
In the case now before the Court, we assume that the State had no reason to seek to vacate the order of nolle prosequi during the term of court in which it was entered under Buice, supra, because Carlisle had not yet challеnged the voluntariness of her plea in post-conviction proceedings. But there was additional recourse available to the State once Carlisle filed her habeas petition. At this time, the statute of limitation was still viable to permit the State to reindict the seven felony offenses which had been thе subject of the order of nolle prosequi. The State, however, failed to exercise that option. In fact, the State took no action at аll until October 2001 when it defended Carlisle‘s motion to limit her trial to the four counts which were the subject of her plea. By that time, four and a half years had passed from the entry of her guilty plea and the order of nolle prosequi, the statute of limitation had run on the nolle prossed offenses, and there was no charging instrument pending. By requiring Carlisle to stand trial for the seven additional offenses, the trial court in effect vacated the order nolle prosequi long after the term of court in which it was entered. Such action is in direct contravention to our ruling in Buice, supra. In the absence of a new indictment, the trial court had no jurisdiction to try thе defendant. Id.; Sheahan, supra.
The Court of Appeals analyzed the plea agreement as a contract which binds both parties, and returns the parties to their prе-contract state if the contract fails. But the issue is one of jurisdiction, not contract. Under the circumstances of this case, “the trial court has lost jurisdiсtion of the case and possesses no judicial power to reinstate [the indictment],” Buice, supra at 325, notwithstanding any contract between the parties.
Judgment reversed. All the Justices concur, except Carley, J., who dissеnts.
CARLEY, Justice, dissenting.
I believe that the trial court correctly ruled in this case for the reasons set forth by the Court of Appeals in Carlisle v. State, 257 Ga. App. 282 (570 SE2d 616) (2003). Accordingly, I dissent to the majority‘s reversal of the Court of Appeals judgment which affirmed the
DECIDED SEPTEMBER 15, 2003.
Brian Steel, for appellant.
Daniel J. Porter, District Attorney, David K. Keeton, Assistant District Attorney, for appellee.