After the grant of an interlocutory appeal, Jihad Kabir Nunnally appeals the trial court’s denial of his motion to quash his indictment and to transfer his case to the
The record shows that Nunnally was arrested on October 2, 2009, for aggravated assault, armed robbery with a firearm, and possession of a firearm during the commission of a felony. Although he was 16 years old at the time, the superior court had jurisdiction over Nunnally’s case because he allegedly committed armed robbery with a firearm. See OCGA § 15-11-28 (b) (2) (A) (vii).
Nunnally turned 17 years old on December 28, 2009, after which he was transferred to the county jail. On May 4, 2010, 214 days after his arrest, Nunnally was indicted for aggravated assault, armed robbery with a firearm, and possession of a firearm during the commission of a felony. On July 6, 2010, Nunnally moved to quash the indictment and transfer his case to the juvenile court because he was not indicted within 180 days of his detention as required by OCGA § 17-7-50.1.
More than two months later, on September 23, 2010, the State responded to Nunnally’s motion by asking the trial court to grant a retroactive extension of time in which to file the indictment. This request was made 176 days after the 180-day period prescribed in OCGA § 17-7-50.1 (a) had ended, and 356 days after Nunnally’s arrest.
Nevertheless, on October 20, 2010, more than a year after Nunnally was detained and 226 days after the expiration of the 180-day period prescribed in OCGA § 17-7-50.1, the trial court denied Nunnally’s motion to quash and implicitly granted the State’s motion for an out-of-time extension. The court reasoned that the grand jury returned its indictment within 90 days of the expiration of the original 180-day period, and that “if the [SJtate had requested a 90 day extension of time, it would have been granted.” Thus, granting a retroactive extension, the trial court deemed the indictment timely and denied Nunnally’s motion. The trial court issued a certificate of immediate review, and after Nunnally’s application for an interlocutory appeal was granted, this appeal followed. He remains in jail.
1. This court has previously held that
[t]he plain language of [OCGA § 17-7-50.1] provides that a child within superior court jurisdiction “shall within 180 days of the date of detention be entitled to have the charge against him or her presented to the grand jury.” The statute further provides that the case “shall be transferred to the juvenile court” if an indictment is not obtained within the specified time.
(Emphasis in original.)
Hill v. State,
This appeal differs from
Hill,
because in this case the State sought and obtained an after-the-fact extension of time. Thus, the question becomes whether this can be done. Nunnally contends that the State was not entitled to obtain an extension of time after the original 180-day indictment period expired. As this issue turns on proper interpretation of OCGA § 17-7-50.1, it “is a question of law, which is reviewed de novo on appeal. [Cit.J ”
Spivey v. State,
Although the legislature did not specify whether an extension of time contemplated by OCGA § 17-7-50.1 (a) must be requested before the 180-day period expired, and no case law resolves the question, the wording of the Code section makes it clear that the extension cannot be granted after the time limit established in the Code section has expired. In relevant part, OCGA § 17-7-50.1 provides:
(a) Any child who is charged with a crime that is within the jurisdiction of the superior court, as provided in Code Section 15-11-28 or 15-11-30.2, who is detained shall within 180 days of the date of detentionbe entitled to have the charge against him or her presented to the grand jury. The superior court shall, upon motion for an extension of time and after a hearing and good cause shown, grant one extension to the original 180 day period, not to exceed 90 additional days.
(b) If the grand jury does not return a true bill against the detained child within the time limitations set forth in subsection (a) of this Code section, the detained child’s case shall be transferred to the juvenile court and shall proceed thereafter as provided in Chapter 11 of Title 15.
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(Emphasis supplied.)
Subsection (b) of this Code section states that if the indictment is not returned within 180 days after the child is detained plus any granted extension, “the detained child’s case
shall
be transferred to the juvenile court and
shall
proceed thereafter as provided in Chapter 11 of Title 15.” “Shall” is recognized generally as a command, and is mandatory.
State v. Henderson,
The only natural and reasonable construction of OCGA § 17-7-50.1 (b) is that if an indictment is not returned within 180 days after the child was detained and no extension had been granted before that period expired, the child’s case must be transferred to the juvenile court.
Hill,
supra. Because no indictment was returned within 180 days after Nunnally’s arrest and detention, the grand jury lost authority to indict Nunnally before the indictment was returned. The indictment returned 214 days after his detention was void. Consequently, the trial court erred by granting the State’s untimely motion for an extension and denying Nunnally’s motion to quash the indictment and transfer the case. This finding is consistent with the holding in
Hill
that once the 180-day period expired,
“the superior court lacked jurisdiction to enter its judgment on Hill’s guilty plea.”
Hill,
supra,
When a specified time limit authorizing jurisdiction is exceeded, the trial court loses jurisdiction over such case. See, e.g.,
Hill,
supra,
In a similar manner, under OCGA § 17-7-170 (b) if a defendant files a proper demand for trial and is not tried within that term of court or in the next regular court term in which juries qualified to try the defendant were impaneled, the defendant “shall be absolutely discharged and acquitted.” Consequently,
[wjhere demand is made and two terms of court expire, at both of which juries are impaneled and qualified to try the defendant,then discharge and acquittal must follow. The defendant’s discharge takes place by operation of law. No motion to acquit is necessary, but the discharge of the accused results automatically, by operation of law. Thus, appellant was automatically discharged at the close of the May term. Therefore, since appellant was automatically discharged at the close of the May term, the State’s reliance on appellant’s September term purported waiver of his demand for trial is misplaced.
(Citations and punctuation omitted; emphasis in original.)
Smith v. State,
Additionally, other provisions
of
our law, OCGA §§ 9-2-60 (b) and
9-11-41 (e), provide that any case in which “no written order is taken for a period of five years shall automatically stand dismissed. . . .” “In fact, ‘(a)ny subsequent order after the automatic dismissal of the case is null and void, because the trial court has lost jurisdiction over the case, which no longer is pending before it.’ [Cit.]”
Brown v. Kroger Co.,
OCGA § 17-7-50.1 should not be treated differently. Further, orders cannot be entered nunc pro tunc in these circumstances because “[a] nunc pro tunc entry cannot supply non-action. [Cits.]”
Sikes v. Charlton County,
Consequently, because the grand jury did not indict Nunnally within 180 days after his detention and no extension of time had been granted, the grand jury lost authority over Nunnally’s case by operation of law. As a result, the indictment and the trial court’s after-the-fact grant of an extension were unauthorized and void, and the trial court’s order denying Nunnally’s motion to quash the indictment and transfer his case to the juvenile court must be vacated.
2. The State argues also that Nunnally’s motion was properly denied because he ultimately was indicted for armed robbery, a crime punishable by death or imprisonment for life or by imprisonment for not less than ten nor more than twenty years (OCGA § 16-8-41 (b)), and the superior court is prohibited from transferring to juvenile court cases in which the offense charged is punishable by “loss of life, imprisonment for life without possibility of parole, or confinement for life in a penal institution.” OCGA § 15-11-28 (b) (2) (B). Because we have found in Division 1 that Nunnally’s indictment was void, OCGA § 15-11-28 (b) (2) (B) does not apply, and this contention is without merit.
Accordingly, the order of the trial court denying Nunnally’s motion to quash the indictment and transfer the case to the juvenile court is vacated and the case is remanded to the superior court to transfer this case to the juvenile court for proceedings in accordance with Chapter 11 of Title 15.
Judgment vacated and case remanded with direction.