State v. Outen

• Decision Date: 20 October 2014
• Docket Number: No. S14G0390.,S14G0390.
• Citation: 296 Ga. 40,764 S.E.2d 848
• Parties: The STATE v. OUTEN.
• Court: Georgia Supreme Court

296 Ga. 40

764 S.E.2d 848

The STATE

v.OUTEN.

No. S14G0390.

Supreme Court of Georgia.

Oct. 20, 2014.

Kenneth W. Mauldin, Dist. Atty., Brian Vance Patterson, Asst. Dist. Atty., for appellant.

Edward Hunt Brumby, Jr., for appellee.

Opinion

NAHMIAS, Justice.

We granted certiorari in this case to consider two issues: (1) whether the Court of Appeals erred in concluding that OCGA § 17–3 –3 did not give the State six additional months to obtain a second indictment against appellee David Outen after the remittitur was filed following the State's unsuccessful attempt to appeal the dismissal of the felony vehicular homicide (“FVH”) count of Outen's first indictment; and (2) whether the Court of Appeals erred in concluding that the FVH count of the second indictment did not relate back to the date of the first indictment. As explained below, the Court of Appeals reached the correct conclusion on both issues, although we disagree with its analysis of the relation-back issue. Accordingly, we affirm the Court of Appeals' judgment upholding the dismissal of the felony vehicular homicide count of the second indictment. See Bunn v. State, 291 Ga. 183, 193, 728 S.E.2d 569 (2012) (affirming the Court of Appeals' judgment on certiorari under the right-for-any-reason doctrine).

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 OCGA §§ 40–6–390(a), 40–6–393(a), and misdemeanor vehicular homicide based on failure to maintain lane, see OCGA §§ 40–6–48, 40–6–393(c). The indictment was timely under the statute of limitations, which gives the State four years to bring a charge of felony vehicular homicide and two years to charge misdemeanor vehicular homicide.¹

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 Court of Appeals affirmed in State v. Outen, 304 Ga.App. 203, 695 S.E.2d 654 (2010) (Outen I ). After granting certiorari, we vacated the Court of Appeals' judgment and remanded the case to that court to dismiss the appeal because the State had not followed the procedures required at that time for an interlocutory appeal from the dismissal of only part of an indictment. See State v. Outen, 289 Ga. 579, 580–582, 714 S.E.2d 581 (2011) (Outen II ); former OCGA § 5–7–2 (requiring the State to follow interlocutory appeal procedures when the order being appealed was not a “final” order or an order suppressing illegally seized evidence).² On remand, the Court of Appeals conformed its judgment to this Court's opinion, see State v. Outen, 311 Ga.App. 378, 378, 715 S.E.2d 782 (2011) (Outen III ), and issued the remittitur on August 31, 2011, which was filed in the trial court on September 8, 2011.

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 S.E.2d 109 (2013) (Outen IV ). The Court of Appeals held that OCGA § 17–3–3, which extends the statute of limitations for six months after a timely filed indictment is quashed, did not apply in this case to save the FVH count of the second indictment. See Outen IV, 324 Ga.App. at 462–464, 751 S.E.2d 109. The court also held that the second indictment substantially amended the original FVH charge and therefore did not relate back to the timely filed first indictment. See id. at 459–462, 751 S.E.2d 109. We granted the State's petition for certiorari to consider both of the Court of Appeals' holdings.

2. The basic law governing the statute of limitations in criminal cases is codified at OCGA §§ 17–3–1 to 17–3–3. Broadly speaking, OCGA § 17–3–1 limits the time within which a prosecution for particular offenses or categories of offenses must commence, while OCGA §§ 17–3–2, 17–3–2.1, and 17–3–2.2 specify periods that are excluded from the various limitations periods. OCGA § 17–3–3 then adds:

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 prosequi 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, OCGA § 17–3–3 extends the limitations period for the dismissed charge for an additional six months, thereby ensuring that the State will have the opportunity to seek a new or superseding indictment on that charge. “After that time, the prosecution cannot be recommenced, absent a statutory ground for the suspension of the statute of limitation.” Carlisle v. State, 277 Ga. 99, 101, 586 S.E.2d 240 (2003).

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 OCGA § 17–3–3 made the FVH count of the second indictment timely because the trigger date for the six-month savings period was not the date in September 2009 that the trial court dismissed the FVH count of the first indictment, but rather the date in September 2011 that the remittitur from the failed appeal was filed in the trial court, which was less than six months before the grand jury returned the second indictment. The trial court and the Court of Appeals rejected the State's argument, and they were right.

The text of the statute is clear. OCGA § 17–3–3 says that the six-month extension of the statute of limitations runs “from the time the first indictment is quashed or the nolle prosequi entered.” The statute does not say, as the State would have it, “from the time the first indictment is quashed or the nolle prosequi entered or, in the event the State seeks an appeal, from the time the appellate court issues the remittitur. ” See Duncan v. State, 193 Ga.App. 793, 794, 389 S.E.2d 365 (1989) (holding that an appeal does not toll the statute of limitations under OCGA § 17–3–2 because the pendency of an appeal is not among the exceptions listed in OCGA § 17–3–2 and “[i]n a criminal statute of limitation only an exception or condition contained within the statute will toll its operation”). It is not surprising that OCGA § 17–3–3 does not contemplate extending the limitations period based on the State's appeal of a dismissal order, because the statute now codified as OCGA § 17–3–3 was enacted in 1968, see Ga. L. 1968, p. 1249, § 1, at pp. 1266–1267, five years before the General Assembly first gave the State “a limited right to appeal certain orders ... in criminal cases,” including “an order ... dismissing any indictment or information, or any count thereof,” Ga. L. 1973, p. 297. See State v. Martin, 278 Ga. 418, 418–419, 603 S.E.2d 249 (2004) (discussing the history of State appeals in criminal cases).

The State resists this straightforward reading of OCGA § 17–3–3 on several grounds. First, the State asks us to read OCGA § 17–3–3 in light of the analogous federal statute, 18 U.S.C. § 3288, which says, with emphasis added:

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 18 U.S.C. § 3288 to add the emphasized language addressing the situation where the government unsuccessfully appeals an order dismissing a criminal charge by giving the government a limited additional period to obtain a new indictment on the dismissed charge. See Anti–Drug Abuse Act of 1988, Pub.L. No. 100–690, § 7081...