State v. Outen , 296 Ga. 40 ( 2014 )

In the Supreme Court of Georgia
Decided: October 20, 2014
S14G0390. THE STATE v. OUTEN.
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 SE2d
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
1
The limitations period for FVH is four years. See OCGA § 17-3-1 (c) (“[P]rosecution for
felonies other than those specified in subsections (a), (b), and (d) of this Code section [murder,
forcible rape, crimes punishable by death or life imprisonment and, where DNA evidence is used to
establish the identity of the accused, armed robbery, kidnapping, and certain sex crimes] shall be
commenced within four years after the commission of the crime”). See also OCGA § 40-6-393 (a)
(establishing a sentencing range of three to 15 years in prison for felony vehicular homicide based
on reckless driving). The limitations period for misdemeanor vehicular homicide is two years. See
OCGA § 17-3-1 (e) (“Prosecution for misdemeanors shall be commenced within two years after
the commission of the crime.”).
2
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 SE2d 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 SE2d 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.
2
Our decision in Outen II rejected the reasoning of several Court of Appeals cases that had
held that an order dismissing a single count of a multi-count indictment was a “final” order under
former OCGA § 5-7-2. See Outen II, 289 Ga. at 581-582. After Outen II, the General Assembly
amended § 5-7-2 to authorize the State to appeal an order dismissing fewer than all counts of an
indictment without following the interlocutory appeal procedures. See Ga. L. 2012, p. 899, §§ 1-2,
9-1 (a) (codified as OCGA § 5-7-2 (b) (2) (effective July 1, 2012)).
3
Ohio App. 378, 378 (715 SE2d 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 SE2d 109) (2013) (Outen IV). The Court of Appeals
held that OCGA § 17-3-3, which extends the statute of limitations for six
4
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. 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. 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, § 17-3-1 limits the
time within which a prosecution for particular offenses or categories of offenses
must commence, while §§ 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, § 17-3-3 extends the limitations period
for the dismissed charge for an additional six months, thereby ensuring that the
5
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 limitations.” Carlisle v.
State, 277 Ga. 99, 101 (586 SE2d 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
6
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 SE2d 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 § 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 § 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 p. 1266-1267, five years before the General Assembly first
gave the State “a limited right to appeal certain orders . . . in criminal cases,”
7
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
SE2d 249) (2004) (discussing the history of State appeals in criminal cases).
The State resists this straightforward reading of § 17-3-3 on several
grounds. First, the State asks us to read § 17-3-3 in light of the analogous
federal statute, 18 USC § 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 USC § 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 (a) (1), 102 Stat. 4181, 4407.
8
OCGA § 17-3-3 and its statutory predecessors have never contained
similar language regarding appeals and finality. The General Assembly did not
add such language in 1973, when it first gave the State a limited right to appeal
an order dismissing an indictment or count of an indictment, nor has it added
such language in the 40 years since, notwithstanding the 1988 amendment to the
federal statute. The General Assembly knows how to adjust the time limits
applicable to criminal cases to account for appeals, when it wishes to do so. See
OCGA § 17-10-1 (f) (giving sentencing courts jurisdiction to modify a sentence
“[w]ithin one year of the date upon which the sentence is imposed, or within 120
days after receipt by the sentencing court of the remittitur upon affirmance of
the judgment after direct appeal, whichever is later” (emphasis added)). Thus,
to the extent that the analogous federal statute sheds light on the meaning of
OCGA § 17-3-3, it undermines rather than advances the State’s position.
The State next complains that measuring § 17-3-3’s extension from the
time that the trial court dismissed the FVH count of the first indictment against
Outen puts the State in an unfair bind, because the remittitur in Outen III was
not issued until August 31, 2011, several months after the four-year statute of
limitations for FVH had expired. Under existing appellate precedent, however,
9
the State could have protected itself by obtaining the same second indictment
that the State obtained in December 2011 anytime prior to March 27, 2011,
notwithstanding the pendency of the appeal concerning the first indictment – in
the same way the State protected itself in at least three other cases. See Roberts
v. State, 279 Ga. App. 434, 437-438 (631 SE2d 480) (2006) (holding that an
appeal challenging the legality of an indictment does not deprive the trial court
of jurisdiction over a second indictment charging the same crimes but not
implicating the order or matter being appealed), overruled on other grounds,
DeSouza v. State, 285 Ga. App. 201, 202 n.2 (645 SE2d 684) (2007) (whole
court). Accord Kenerly v. State, 325 Ga. App. 412, 413-415 (750 SE2d 822)
(2013) (case decided after Outen III relying on Roberts to reach the same
conclusion); Brown v. State, 322 Ga. App. 446, 447-451 (745 SE2d 699) (2013)
(same), aff’d, 295 Ga. 240 (759 SE2d 489) (2014). See also Strickland v. State,
258 Ga. 764, 765 (373 SE2d 736) (1988) (explaining that the supersedeas
pending appeal of a criminal case, see OCGA § 5-6-45, does not deprive the trial
court of jurisdiction over all aspects of the case).
Finally, the State asserts that the approach reflected in the post-1988
version of 18 USC § 3288 is better public policy. The State argues that it should
10
not be forced to re-indict a case while the legal sufficiency of a prior indictment
is under review in a pending appeal. The State adds that if we affirm the Court
of Appeals’ judgment in this case, defendants will end up defending themselves
against successive indictments on the same charges while simultaneously
opposing government appeals challenging the dismissal of all or part of their
prior indictments. The Court of Appeals has noted the possibility of
overlapping indictments in this situation, although it also explained that, if the
State’s appeal of the first indictment proved successful, it
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 OCGA § 17-3-3. See
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Abdulkadir v. State, 279 Ga. 122, 124 (610 SE2d 50) (2005) (“A court of law
is not authorized to rewrite the statute by inserting additional language that
would expand its application . . . .”). The State’s policy arguments are more
appropriately directed to the General Assembly, which may if it chooses amend
§ 17-3-3 to track the current version of 18 USC § 3288 and thereby avoid the
problems that the State has identified.
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
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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 felony vehicular homicide and
misdemeanor vehicular homicide, was timely. And when the second indictment
against Outen was returned on December 20, 2011, the first indictment was still
pending, although by that time it charged only misdemeanor vehicular homicide,
as the FVH count had been dismissed. See Outen II, 289 Ga. at 581 (noting that
the misdemeanor vehicular homicide count of the first indictment “remains in
the trial court”). See also United States v. Smith, 197 F3d 225, 228-229 (6th Cir.
1999) (explaining that an original indictment is “validly pending” even if
defective or insufficient, but only “until it is dismissed or until double jeopardy
or due process would prohibit prosecution under it”).3 Thus, the State’s
relation-back claim turns on whether the Court of Appeals erred in concluding
3
Thus, the return of a defective (voidable), as opposed to a void, indictment tolls the statute
of limitations for the charges contained in it, and even after the limitations period has expired the
defect may be corrected by a superseding indictment that meets the relation-back test – but only if
the corrective indictment is filed before the original indictment is dismissed. Once the original
indictment is dismissed, whether a new indictment satisfies the statute of limitations is determined
not by the relation-back test but rather by application of the relevant limitations statute and tolling
or extension provisions like 18 USC § 3288 or OCGA § 17-3-3. See Smith, 197 F3d at 229.
13
that the FVH count of the second indictment broadened or otherwise
substantially amended the prior indictment as it was still validly pending.
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
4
Our Court of Appeals discussed some of these factors in Martinez v. State, 306 Ga. App.
512 (702 SE2d 747) (2010):
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.
Id. at 523 (citation omitted).
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called to account for certain activities and should prepare his defense
accordingly. See id.; Italiano, 894 F2d at 1283.
The Court of Appeals concluded that the second indictment against Outen
substantially amended the pending indictment because the felony vehicular
homicide count of the first indictment did not put Outen “on notice of the
manner in which he allegedly violated the reckless driving statute,” and the
second indictment “informed him for the first time that he would have to defend
the felony charge based on allegations, inter alia, that he had a known seizure
condition and had failed to take seizure medication.” Outen IV, 324 Ga. App.
at 461. However, the FVH count of the second indictment was narrower than
the original FVH count; it specified the particular theory of reckless driving that
the State intended to pursue, thereby limiting the range of evidence and
arguments that Outen previously would have had to confront at trial. From a
notice standpoint, the additional allegations in the second indictment made it
easier, rather than harder, for Outen to prepare his defense. See United States
v. O’Bryant, 998 F2d 21, 25 (2nd Cir. 1993) (“When a superseding indictment
does no more than specify the exact mechanics of a defendant’s participation in
a previously charged offense, it does not represent a material broadening or
15
substantial amendment of the original indictment.”). We therefore disagree with
the Court of Appeals’ rationale for rejecting the State’s relation-back claim.
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 OCGA §§ 40-6-48, 40-6-393
(c). The second indictment duplicated that misdemeanor count but added a
count of felony vehicular homicide based on reckless driving. See OCGA §§
40-6-390 (a), 40-6-393 (a). Compared with the sole pending charge of
misdemeanor vehicular homicide, this felony count alleged a violation of a
different statute, contained different elements, relied on different evidence, and
exposed Outen to a potentially far greater sentence. See Liu, 731 F3d at 996-
997.
16
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); Martinez,
306 Ga. App. at 523 (holding that additional charges of false imprisonment and
kidnapping in the second indictment broadened and substantially amended the
original charges of burglary, armed robbery, attempted armed robbery,
aggravated assault, and sexual battery and therefore did not relate back to the
date of the first indictment). The trial court therefore properly dismissed the
felony vehicular homicide count of the second indictment, and the Court of
Appeals reached the right result in upholding that ruling.
Judgment affirmed. All the Justices concur.
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