In 2004, appellant Prentiss Ashon Jackson entered a negotiated guilty plea to one count of statutory rape, registered with the sexual offender registry, and listed an address in Houston County He was made aware of the requirement to update his registration information within 72 hours prior to any change of address. Nevеrtheless, in 2011, he moved to Bibb County without registering his new address within the required period of time. He was indicted, and the caption of the one-count indictment read: “Failure to register as a sex offender.” The body of the count read as follows:
for that the said accused, in the State of Georgia and County of Houston, on or about September 15, 2011, did fail to register his change of address with the Houston County Sheriff’s Office within 72 hours of the change as required under OCGA § 42-1-12, contrary to the laws of said State, the good order, peace and dignity thereof.
During trial, Jackson made an oral general demurrer to the indictment, which the trial court denied. Jackson was convicted by a jury and sentenced to 30 years, serving six years in prison without the possibility of parole and serving the remaining 24 years on probation. Jackson appealed and challenged, among other things, the sufficiency of the indictment against him. The Court of Appeals held the indictment was not fatally defective and affirmed his conviction. See Jackson v. State,
1. The standard applied by the Court of Appeals
In order to determine the sufficiency of the indictment in this case, we start with an examination of the statute rеferenced in it.
(f) Any sexual offender required to register under this Code section shall:
(5) Update the required registration information with the sheriff of the county in which the sexual offender resides within 72 hours of any change to the required registration information, other than where he or she resides or sleeps if such person is homeless. If the information is the sexual offender’s new address, the sexual offender shall give the information regarding the sexual offender’s new address to the sheriff of the county in which the sexual offenderlast registered within 72 hours prior to any change of address and to the sheriff of the county to which the sexual offender is moving within 72 hours prior to establishing such new address. If the sexual offender is homeless and the information is the sexual offender’s new sleeping location, within 72 hours of changing sleeping locations, the sexual offender shall give the information regarding the sexual offender’s new sleeping location to the sheriff of the county in which the sexual offender last registered, and if the county has changed, to the sheriff of the county to which the sexual offender has moved[.]
Subsection (n) of the statute makes it a felony to fail to comply with the requirements of the Code section.
The Court of Appeals based its holding that the indictment against appellant was not fatally defective on two conclusions: first, that the indictment charged appellant with violating a specific penal statute, OCGA § 42-1-12, and incorporated the terms of that Code section; and second, that appellant “could not admit his acts violated OCGA § 42-1-12, i.e., thаt he failed to register as a sex offender, and still be innocent of the charged offense.” Jackson, supra, 335 Ga. App. at 599. The problem with this reasoning is that the indictment referenced the entire multi-part, 14-page Code section, which includes numerous requirements with which a convicted sexual offender must comply. In fact, the indictment did not set out or incorporate that portion of the language of subsection (f) (5) quoted in the Court of Appeals opinion. The indictment merely asserted that appellant failed to register a change of address with the Houston County sheriff’s office within 72 hours of that change of address as required by OCGA § 42-1-12. But even subsection (f) (5), which sets out the steps that must be followed to update a sexual offender’s registration information, contains multiple requirements. If the change of address is within the county in which the offender already is registered, the updated information must be provided within 72 hours prior to establishing the new address to the sheriff of that county. See OCGA § 42-1-12 (f) (5). If the change of address involves a move to another county, the updated information must be given within the allotted time not only to the sheriff of the county in which the offender last registered but also to the sheriff of the county to which the offender is moving. Id.
In support of its holding, the Court of Appеals relied upon its earlier opinions for the proposition that “[b]ecause an accused cannot admit an allegation that [his or] her acts were ‘in violation of’ a specified Code section and yet not be guilty of the offense set out in that Code section, such an accusation [or indictment] is not fatally defective.” (Citation and punctuation omitted.) Dixson v. State,
Indeed, if the allegation that a statute has been violated were the only essential element required to be set forth in an indictment, and
Further, such an indictment would not provide the accused with due process of law in that it would not notify the accused of what factual allegations he must defend in court. See Hill v. Williams,
In sum, to withstand a general demurrer, an indictment must: (1) recite the language of the statute that sets out all the elements of the offensе charged, or (2) allege the facts necessary to establish violation of a
2. The sufficiency of the indictmen t in this case
The indictment in this case is based upon several assumptions of fact not set forth in the indictment. The caption of the indictment seems to imply that appellant is a convicted sexual offender who was required to register his address. Nevertheless, while the indictment does reference a change of address and that defendant was required to register it with the Houston County sheriff’s office, it does not assert that appellant previously was registered there as a sexual offender and has now established a new address within Houston County, or that appellant has moved from Houston County to аn address in another county, or that he has moved to Houston County from an address in another county where he was previously registered. In other words, the indictment does not inform the accused of what alleged action or inaction would constitute a violation of even subsection (f) (5) of the Code sectiоn, which subsection was not even referenced in the indictment. Nor does it inform the parties what facts the grand jury considered in arriving at its conclusion that probable cause was shown that the accused committed a specific crime.
Moreover, the offense denominated in the indictment is “failure to register as a sex offender” and the Court of Appeals concluded appellant could not admit he violated the referenced Code section “and still be innocent of the charged offense.” But this simply illustrates the problem with the indictment in this case, since failure to register is not the offense for which appellant was tried. The record reflects that appellant properly registered his original address after his guilty plea conviction; he did not fail to register as required by OCGA § 42-1-12. The evidence presented at trial related to appellant’s failure to update his required registration information with a change of address, nоt an initial failure to register as a sexual offender.
Although the indictment in this case cited the statute appellant was accused of violating (OCGA § 42-1-12), and it referenced some of the language of that statute, it did not recite a sufficient portion of the statute to set out all the elements of the offense fоr which he was tried and convicted. Likewise, the indictment did not allege all the facts necessary to establish a violation of OCGA § 42-1-12 (f) (5).
The case of Relaford v. State
[0]n or about April 4, 2007, the exact date being unknown to the grand jurors, after having previously beеn convicted of Rape ... on November 14, 2000, which conviction required [him] to register as a sexual offender in the county in which he resided, [the accused] did change his Chatham County residence from [statedaddress], Savannah, Chatham County, Georgia and did fail to notify the Sheriff of Chatham County of such change within 72 hours following suсh change in violation of Code Section 42-1-12.
Supra,
We conclude the indictment in this case was not sufficient to withstand a general demurrer and was deficient and void. Consequently, appellant’s conviction is reversed.
Judgment reversed.
Notes
We also begin by noting the distinction between a general demurrer and a special demurrer. A defendant may chаllenge the sufficiency of the substance of an indictment by making a general demurrer, thereby asserting the indictment is fatally defective and cannot support a conviction. A defendant may challenge the sufficiency of the form of an indictment by filing a special demurrer, asserting that the charge is imperfeсt as to form or that he or she is entitled to more information about the charged offense. See Kimbrough v. State,
See Ga. L. 2010, p. 168, §§ 5-11/HB571.
Id. at 387.
Supra,
In fact, even after its decision in Shabazz, the Court of Appeals has applied the proper standard for determining whether an indictment is sufficient to withstand a general demurrer, and looked to whether the indictment alleged sufficient facts, which if true, would charge the accused with a crime. See State v. Wright,
See, e.g., Dixson v. State, supra; State v. King,
Another purpose of an indictment, in addition to allowing the defendant to prepare an intelligent defense, is to protect the defendant from double jeopardy in the event other proceedings are brought against him arising from the same transactiоn. See State v. Grube,