P. J., COOMER and MARKLE, JJ.
granted David Gene Batten's application for interlocutory
review of the trial court's order denying his special
demurrer and motion to quash the second indictment against
him on the same charges asserted in an earlier indictment.
Batten asserts that the earlier indictment was void as a
matter of law and as a result, the statute of limitations for
the charges asserted in the first indictment was not tolled.
Batten argues the trial court's denial of his motion to
quash the second indictment was therefore erroneous because
the second indictment was filed after the expiration of the
statute of limitations. For the reasons that follow, we
considering an appeal of a trial court's order on a
motion to dismiss and/or quash an indictment, "[w]e
review the trial court's interpretations of law and
application of the law to the facts de novo and its findings
of fact for clear error." State v. Scott, 344
Ga.App. 744, 744 (811 S.E.2d 457) (2018) (footnote omitted).
So viewed, the record shows that Batten was arrested on
November 19, 2011 for offenses that allegedly occurred the
day prior. In a September 29, 2015 indictment, Batten was
charged with four counts of homicide by vehicle in the first
degree, driving under the influence, reckless driving,
driving on the wrong side of roadway, and failure to maintain
lane. The State nolle prossed the indictment on November 30,
2015 and the trial court approved the judgment of nolle
prosequi on December 22, 2015. The State indicated that the
reason for the nolle prosequi was because an unqualified
grand juror voted on the first indictment.
January 29, 2016, the State re-indicted Batten with the same
charges alleged in the first indictment. The second
indictment was filed outside the statute of limitations
period, however, in the second indictment the State alleged
that the first indictment was filed before the statute of
limitation expired, and pursuant to OCGA § 17-3-1, the
nolle prosequi of the original indictment extended the
limitation period for six months. Batten filed a special
demurrer, motion to quash indictment, and motion to dismiss,
arguing that because the first indictment was void, it
therefore could not extend the limitation period for the
charges listed in the second indictment. The trial court
denied the motion without explanation, but certified its
ruling for immediate review. Batten then filed an application
for interlocutory appeal, which this Court granted. This
argues that because the original indictment was void as a
matter of law, OCGA § 17-3-3 is not applicable to the
second indictment. We disagree. OCGA § 17-3-3 provides
that if an indictment is brought within the applicable
statute of limitation for the charged offense, and is later
"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."
"In other words, the State may re-indict a defendant
within six months after the first indictment is nolle prossed
without running afoul of the statute of limitation even if
the initial statute of limitation period has run."
Johnson v. State, 335 Ga.App. 886, 889 (1) (782
S.E.2d 50) (2016).
support of his argument that the first indictment was void,
Batten relies on Georgia Supreme Court precedent that
"the incompetency of one grand juror renders an
indictment void, no matter how many unexceptionable jurors
join with him in finding the bill." State v.
Dempsey, 290 Ga. 763, 764 (1) (727 S.E.2d 670) (2012),
citing Crawford v. Crow, 114 Ga. 282, 284, (40 SE
286) (1901). However, as the State argued before the trial
court, a 2015 statutory provision appears to conflict with
that precedent: OCGA § 15-12-60 (d) provides that
"[i]f an indictment is returned, and a grand juror was
ineligible to serve as a grand juror pursuant to subsection
(c) of this Code section, such indictment shall not be
quashed solely as a result of such ineligibility."
Batten may argue that the statute is inapplicable because the
text refers to an indictment being "quashed" but
not "void." However, the language assumes an
indictment returned by an ineligible grand juror is not void
because a void because a void indictment would not be subject
to being "quashed" - it would be void ab
initio. Furthermore, the statute was established with
the purpose of preserving indictments returned by ineligible
grand jurors. A determination by this Court that the
participation of an ineligible grand juror, as defined by
subsection (c) of the code section, renders an indictment
void would be logically inconsistent with the purpose and
language of OCGA § 15-12-60 (d).
on the plain language of the statute, the rule described in
Dempsey has since been superceded by statute to the
extent that a grand juror's incompetency is based on OCGA
§ 15-12-60 (c). See Woodard v. State, 296 Ga.
803, 813 (3) (b) (771 S.E.2d 362) (2015) ("Under our
Constitution and legal tradition, judges are supposed to
apply the law enacted by the legislature based on what a
statute says[.]" (citation omitted)). Accordingly, even
though the State nolle prossed the original indictment due to
the incompetency of one grand juror and the trial court
granted it, the original indictment itself was not rendered
in response to the State's argument, Batten contends that
OCGA § 15-12-60 (d) does not apply to this case because
it became effective July 2015, which was after the offenses
are alleged to have occurred, and would therefore have to be
applied retroactively. We do not find this argument
persuasive because the crucial date in this case is the date
the original indictment was filed, not the date of the
offenses. See Brown v. State, 322 Ga.App. 446, 449
n.4 (745 S.E.2d 699) (2013) ("A prosecution begins with
the return of an indictment."). See also OCGA §
16-1-3 (14). Because OCGA § 15-12-60 (d) took effect
before Batten's first indictment was issued on September
29, 2015, applying the statute to Batten's case would not
be retroactive. See Ga. L. 2015, Act 98, § 1A-1, eff.
July 1, 2015.