State v. OutenState v. Outen
We granted certiorari in this case to consider two issues: (1) whether the Court of Appeals erred in concluding that
1. The record indicates that on March 21, 2007, Outen was driving along West Broad Street in Athens, Georgia, when his vehicle abruptly and sharply veered off the road into a restaurant parking lot where Trina Heard had stopped on her way to work. Outen‘s vehicle slammed into Heard‘s car, killing her. On March 18, 2009, a Clarke County grand jury returned a two-count indictment charging Outen with felony vehicular homicide based on reckless driving, see
In June 2009, Outen filed a special demurrer seeking dismissal of the FVH count on the ground that the indictment did not sufficiently notify him of the basis for the charge, which the trial court granted in September 2009. The State filed a direct appeal, and the
A few months later, on December 20, 2011, a grand jury returned a second indictment against Outen on the same two charges based on the events of March 21, 2007. The misdemeanor vehicular homicide count was identical to that count in the original indictment, but the new indictment included additional factual allegations in the felony vehicular homicide count. That count now alleged that Outen “drove with a known seizure condition . . . without taking medication to prevent seizures, and . . . had a seizure while driving,” and that he “then failed to maintain his lane of travel, failed to brake his motor vehicle, and failed to take any evasive action to avoid hitting Trina Heard‘s motor vehicle.”
In January 2012, Outen filed a plea in bar and demand for acquittal claiming that the FVH charge was time-barred, which the trial court granted on April 24, 2012. The trial court granted the State a certificate of immediate review, and the Court of Appeals granted the State‘s application for interlocutory appeal but then affirmed the trial court‘s order in State v. Outen, 324 Ga. App. 457 (751 SE2d 109) (2013) (Outen IV). The Court of Appeals held that
2. The basic law governing the statute of limitations in criminal cases is codified at
If an indictment is found within the time provided for in Code Section 17-3-1 or 17-3-2, or other applicable statute, and is quashed or a nolle proseiqui entered, the limitation shall be extended six months from the time the first indictment is quashed or the nolle prosequi entered.
Thus, where a grand jury returns an indictment charging the defendant with an offense within the applicable statute of limitations, and the trial court later dismisses that count of the indictment,
As discussed previously, Outen was charged with felony vehicular homicide based on events that occurred on March 21, 2007. The first indictment was timely filed on March 18, 2009, but the trial court dismissed the FVH count of that indictment and the State‘s appeal of that ruling was dismissed. The second indictment charging Outen with FVH was not returned until December 20, 2011, four years and almost nine months after the offense was allegedly committed. Absent a statutory ground for tolling or extension, the FVH count of the second indictment was barred by the four-year statute of limitations for that crime. The State does not contend that any of the statutory grounds for tolling apply. Rather, the State argues that
The State resists this straightforward reading of
Whenever an indictment or information charging a felony is dismissed for any reason after the period prescribed by the applicable statute of limitations has expired, a new indictment may be returned in the appropriate jurisdiction within six calendar months of the date of the dismissal of the indictment or information, or, in the event of an appeal, within 60 days of the date the dismissal of the indictment or information becomes final . . . .
The federal statute did not exist in this form in 1968, when the Georgia statute was enacted. It was not until 1988 that Congress revised
The State next complains that measuring
Finally, the State asserts that the approach reflected in the post-1988 version of
merely would result in two indictments for the same crimes, making one of the indictments superfluous. In that event, the State could seek an order of nolle prosequi for the “extra” indictment as such an order “may be entered without the consent of the accused at any time prior to the attachment of jeopardy.”
Brown, 322 Ga. App. at 449, n. 5 (citations omitted). Indeed, in two of the Court of Appeals’ “second indictment” cases, the State announced its intention not to proceed on the later indictment until appellate review related to the prior indictment was complete. See Kenerly, 325 Ga. App. at 414, n. 9; Roberts, 279 Ga. App. at 435.
In any event, this Court has no authority to substitute its own notions of optimal public policy for the policy clearly delineated in
3. The State also contends that the felony vehicular homicide count of the second indictment against Outen was timely, despite the expiration of the statute of limitations, because that count “related back” to the date of the first indictment. We disagree.
A count contained in a subsequent indictment relates back to the date of the prior indictment for purposes of the statute of limitations if: (1) the prior indictment was timely; (2) the prior indictment is still pending; and (3) the later indictment does not broaden or otherwise substantially amend the original charges. See Wooten v. State, 240 Ga. App. 725, 726 (524 SE2d 776) (1999); United States v. Italiano, 894 F2d 1280, 1282 (11th Cir. 1990). See also Lee v. State, 289 Ga. 95, 96 (709 SE2d 762) (2011) (citing Wooten and holding that whether an accusation or indictment returned after the expiration of the statute of limitations broadens or otherwise substantially amends the original charges is an issue of law for the court, rather than the jury, to determine). The first indictment in this case, charging Outen with
In determining whether a subsequent indictment broadens or otherwise substantially amends a timely and pending prior indictment, the court should consider ” ’ “whether the additional pleadings allege violations of a different statute, contain different elements, rely on different evidence, or expose the defendant to a potentially greater sentence.” ’ ” United States v. Liu, 731 F3d 982, 996-997 (9th Cir. 2013) (citations omitted).4 The central concern is whether the prior indictment gave the defendant adequate notice to enable him to prepare his defense to the superseding indictment. See id. at 997. Where the charges and allegations in the prior and subsequent indictments are substantially the same, the assumption is that the defendant was on notice that he would be called to account for certain activities and should prepare his defense accordingly. See id.; Italiano, 894 F2d at 1283.
Nevertheless, the State‘s claim fails for a more fundamental reason. Although the first indictment initially charged Outen with both felony and misdemeanor vehicular homicide, the trial court dismissed the felony charge in September 2009, and the State‘s attempt to appeal that ruling had concluded unsuccessfully by September 2011. Thus, when the second indictment was returned on December 20, 2011, the only charge of the first indictment that was still validly pending against Outen was one count of misdemeanor vehicular homicide based on failure to maintain lane. See
Consequently, the FVH count of the second indictment did not relate back to the date of the then-pending indictment for misdemeanor vehicular homicide. See Lee, 289 Ga. at 96 (holding that the second accusation substantially amended the first accusation and therefore did not relate back with respect to the charge of pimping because the first accusation charged the defendant only with the distinct crimes of prostitution and keeping a place of prostitution);
Judgment affirmed. All the Justices concur.
DECIDED OCTOBER 20, 2014.
Notes
Id. at 523 (citation omitted).Whether an amended indictment broadens or substantially amends the charges contained in the original indictment depends upon whether the new charges “contain elements that are separate and distinct” from the original charges. In other words, we must examine whether the evidence used to prove the crimes charged in the original indictment would be adequate to prove the new crimes charged in the amended indictment.