Certiorari to the Court of Appeals of Georgia -- 324 Ga.App. 457.
Kenneth W. Mauldin, District Attorney, Brian V. Patterson, Assistant District Attorney, for appellant.
Edward H. Brumby, Jr., for appellee.
NAHMIAS, Justice. All the Justices concur.
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.
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 [296 Ga. 41] 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). 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. The court also held that the second indictment ...