Blanton v. State

• Decision Date: 10 March 2014
• Docket Number: No. A13A1200.,A13A1200.
• Citation: 324 Ga.App. 610,751 S.E.2d 431
• Court: Georgia Court of Appeals
• Parties: BLANTON v. The STATE.

324 Ga.App. 610

751 S.E.2d 431

BLANTON

v.The STATE.

No. A13A1200.

Court of Appeals of Georgia.

Nov. 12, 2013.

Certiorari Denied March 10, 2014.

Terry & Peterman, Jody Donald Peterman, Valdosta, for Appellant.

Tracy K. Chapman, Asst. Dist. Atty., J. David Miller, Dist. Atty., for Appellee.

ELLINGTON, Presiding Judge.

After the State indicted him for multiple counts of incest and child molestation, Dean Blanton filed a plea of former jeopardy and a motion to dismiss the indictment. He appeals from the trial court's denial of the motion, contending that prosecution on the indictment is barred because the State charged him with the same offenses in two previous indictments. He also contends, in the alternative, that the court erred in denying his special demurrer to the most recent indictment, arguing that the State failed to show that it was unable to identify specific dates, or reasonably narrow the range of dates, during which he allegedly committed the offenses. For the following reasons, we affirm.

The record shows the following undisputed, relevant facts. In October 2010, the Lowndes County Grand Jury returned an indictment (hereinafter, “the first indictment”) charging Blanton with two counts of incest, three counts of child molestation, and one count of making a terroristic threat. The indictment alleged that Blanton committed acts of incest involving the older of his two daughters “on or about the 1st day of May, 2008 and the 30th day of April, 2010, the exact date and time unknown to the Grand Jury, but known to the accused[.]” It charged him with committing child molestation against his younger daughter “on or about the 1st day of May, 2008 and the 13th day of December 2009, the exact date and time unknown to the Grand Jury, but known to the accused[.]” Blanton filed general and special demurrers to the indictment, and, although the court denied the demurrers, the State decided to obtain a new indictment in order to narrow the range of dates alleged in the child molestation counts.

In April 2011, the State re-indicted Blanton for the same crimes (“the second indictment”); the only substantive changes to the allegations were that the acts of child molestation occurred “on or about the 1st day of June, 2008 and the 1st day of February, 2009[.]” Blanton again filed a special demurrer asserting that the court should quash the incest and child molestation charges because the State had failed to identify the specific dates (or, at least, to sufficiently narrow the ranges of dates) during which the offenses allegedly occurred.¹ During a hearing on the demurrer (“the June 2011 hearing”), the State argued that it was unable to identify the actual dates of the offenses and, in support of this argument, it presented the testimony of a police detective who had interviewed the incest victim and the victims' mother and had observed the forensic interview of the child molestation victim. Following the hearing, the court ruled that the State had met its burden of demonstrating that it had tried to narrow the ranges of dates given in the indictment and that, under the circumstances presented, it had been unable to do so. As a result, it denied Blanton's special demurrer.²

Then, during an April 2012 motion hearing, Blanton raised a new challenge to the second indictment, arguing that it was defective because the range of dates identified in each count did not include the word “between,” for example, “ between the 1st day of May, 2008 and the 30th day of April, 2010.” He argued that, as drafted, each count alleged that the offense at issue occurred “on or about” two distinct and separate dates. The trial court found that Blanton's argument had merit, so it gave the State two options as to how to proceed: the court could dismiss the indictment and the State could re-indict Blanton, or the court could overrule the special demurrer and the State could proceed to trial with the risk that the indictment could later be deemed defective.

The State decided to re-indict Blanton, and, on April 27, 2012, it filed another indictment (“the third indictment”) in which it had added the word “between” to each of the counts in reference to the range of dates; this was the only difference between the second and third indictments. Blanton filed, inter alia, a special demurrer to the third indictment, again arguing that the ranges of dates given in the indictment were unreasonably broad, as well as a plea of former jeopardy and a motion to dismiss. The court denied Blanton's motions,³ and, pursuant to the grant of a motion for an out-of-time appeal, Blanton filed a notice of appeal in November 2012. Then, on December 11, 2012, the trial court granted the State's motion to enter an order of nolle prosequi as to the first indictment,⁴ and issued an order quashing the second indictment.

1. On appeal, Blanton contends that the trial court erred in denying his plea of former jeopardy and motion for judgment of acquittal, pursuant to OCGA § 17–7–53.1.⁵ The court denied the motions based upon its conclusion that OCGA § 17–7–53.1 did not bar his prosecution on the third indictment because, at the time of its ruling, neither the first nor the second indictment had been quashed.

OCGA § 17–7–53.1 provides as follows:

If, upon the return of two “true bills” of indictments or presentments by a grand jury on the same offense, charge, or allegation, the indictments or presentments are quashed for the second time, whether by ruling on a motion, demurrer, special plea or exception, or other pleading of the defendant or by the court's own motion, such actions shall be a bar to any future prosecution of such defendant for the offense, charge, or allegation.

This statute “specifies that the bar to further prosecution intervenes after a second quashing” and “refers only to action on a matter initiated by the defendant or the court, but not the State.” Redding v. State, 205 Ga.App. 613, 614(2), 423 S.E.2d 10 (1992). Unlike a court's order quashing an indictment, a motion to enter a “nolle prosequi” is a formal action made by the State based upon its decision not to further prosecute that indictment. Id. “It is the prerogative only of the State, which may enter it with court approval,” pursuant to OCGA § 17–8–3.⁶ (Citations omitted.) Id. at 614–615(2), 423 S.E.2d 10.

Thus, this Court has ruled that to disregard the plain language of OCGA § 17–7–53.1 that limits its application to cases in which two previous indictments have been “quashed” as a result of some action initiated by the defendant or the court would “render such language meaningless. A statute is to be interpreted so as to give meaning to its entire content rather than to find parts to be surplusage. It follows that entries of nolle prosequi do not trigger the bar to prosecution in OCGA § 17–7–53.1.” (Citation omitted.) Redding v. State, 205 Ga.App. at 615(2), 423 S.E.2d 10. See also State v. Lejeune, 276 Ga. 179, 184–185(4), 576 S.E.2d 888 (2003) (“Nothing in [OCGA] § 17–7–53.1 evidences an intent [by the General Assembly] to include actions initiated by the State in the enumerated matters giving rise to application of the statutory bar to future prosecution.”).

Blanton argues, however, that the trial court abused its discretion in allowing the State to enter a nolle prosequi to the first indictment, because he had moved to quash the indictment and, more importantly, because the entry of a nolle prosequi (instead of an order quashing the first indictment) rendered OCGA § 17–7–53.1 inapplicable and disabled the statute's bar to his prosecution on the third indictment.⁷ The Supreme Court of Georgia, however, has already addressed and decided a similar argument adversely to Blanton in Layman v. State, 280 Ga. 794, 631 S.E.2d 107 (2006). In Layman, the trial court approved the State's requests for the entry of orders of nolle prosequi on two indictments, even though Layman had moved to quash each of them and had objected to the State's requests. Id. On appeal, Layman argued that the trial court had abused its discretion by entering the orders of nolle prosequi over his objection. Id. The Court ruled, however, that, under OCGA § 17–8–3, the State does not need a defendant's consent to obtain an order of nolle prosequi before the case has been submitted to a jury and that the entry of such orders renders the motions to quash moot. Id. at 794–795, 631 S.E.2d 107. More importantly, the Supreme Court also reiterated that “the trial court has discretion to order the entry of a nolle prosequi, instead of quashing the indictment, to avoid the application of OCGA § 17–7–53.1.” (Punctuation and footnote omitted.) Id. at 795, 631 S.E.2d 107, quoting State v. Lejeune, 276 Ga. at 184(4), 576 S.E.2d 888. See also Funk v. State, 321 Ga.App. 737, 738, 742 S.E.2d 766 (2013) (accord); Shane v. State, 320 Ga.App. 1, 2, 739 S.E.2d 9 (2013) (accord).

Accordingly, we find no abuse of discretion by the trial court in granting the nolle prosequi as to the first indictment, nor did the court err in denying Blanton's plea of former jeopardy and motion to dismiss the third indictment. Layman v. State, 280 Ga. at 795, 631 S.E.2d 107;Funk v. State, 321 Ga.App. at 738, 742 S.E.2d 766;Shane v. State, 320 Ga.App. at 2, 739 S.E.2d 9;Redding v. State, 205 Ga.App. at 614–615(2), 423 S.E.2d 10.⁸

2. Blanton contends that the trial court erred in denying his special demurrer to the third indictment, arguing that the State failed to demonstrate that it was unable to narrow the range of dates identified in each count of the indictment.

In reviewing a ruling on a special demurrer, we apply a de novo standard of review, because it is a question of law whether the allegations in the indictment are legally sufficient. Further, because we are reviewing an indictment before any trial, we do not conduct a harmless error analysis to determine if the defendant has actually been prejudiced by the alleged deficiencies in the...