Reconsideration denied July 29, 2015 -- Cert. applied for.
Sexual exploitation of children. Polk Superior Court. Before Judge Murphy.
Gammon, Anderson & McFall, W. Wright Gammon, Jr., for appellant.
Jack Browning, Jr., District Attorney, Matthew S. Nestrud, Assistant District Attorney, for appellee.
BARNES, Presiding Judge; Ray, J., concurs McMillian, J., concurs in the judgment.
Barnes, Presiding Judge.
After allegedly pornographic images were found on his computer, Gerald David Palatini was arrested and later charged with one count of sexual exploitation of children. Following the trial court's denial of his special demurrer, we granted Palatini's application for interlocutory appeal. He now appeals and contends that the trial court erred in denying the special demurrer because the indictment alleged that the offense occurred on April 24, 2009, but the uncontroverted date of the offense was December 7, 2007. He also contends that the indictment was unconstitutionally vague. For the reasons that follow, we affirm.
[D]ifferent standards apply to special demurrers filed before trial and those filed after trial. Because we are reviewing [Palatini's] indictment before any trial, we do not conduct a harmless error analysis to determine if he has actually been prejudiced by the alleged deficiencies in the indictment.
Blackmon v. State, 272 Ga.App. 854 (614 S.E.2d 118) (2005). Instead, pre-trial,
an accusation or indictment is subject to special demurrer if it is not perfect in form as well as substance. By special demurrer an accused claims, not that the charge in an indictment or accusation is fatally defective and incapable of supporting a conviction (as would be asserted by general demurrer), but rather that the charge is imperfect as to form or that the accused is entitled to more information.
(Punctuation and footnote omitted.) State v. Jones, 251 Ga.App. 192, 193 (553 S.E.2d 631) (2001).
When presented with a special demurrer, the court should examine the indictment [or accusation] from the perspective that the accused is innocent, for this is what the law presumes. Nevertheless, the language of an indictment [or accusation] is to be interpreted liberally in favor of the State, while the accused's objections to the indictment [or ...