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.
(Code 1933, § 26-504, enacted by Ga. L. 1968, p. 1249, § 1.)
Law reviews.- For survey article on death penalty decisions from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 175 (2003). For annual survey of criminal law, see 56 Mercer L. Rev. 153 (2004).
JUDICIAL DECISIONSANALYSIS
O.C.G.A. § 17-3-3 intended to function solely as a savings provision, and has no application to a prosecution in which the nolle prosequi is entered over six months before the original statute of limitations expires. Kyles v. State, 254 Ga. 49, 326 S.E.2d 216 (1985).
O.C.G.A. § 17-3-3 is a savings provision which extends the original statute of limitation for six months when a nolle prosequi is entered either after the original statute of limitation has expired, or within six months of the statute's expiration. State v. Davis, 201 Ga. App. 533, 411 S.E.2d 555 (1991).
When new indictment may be found after nolle prosequi entered.
- Under O.C.G.A. §§ 17-3-3 and17-8-3, a nolle prosequi may be entered by the prosecuting attorney with the consent of the court and in such a case a new indictment may be found within six months from the time the first indictment is quashed or the nolle prosequi entered. Not until the expiration of the six-month period within which a new indictment for the same offense may be preferred, or some other act or declaration which amounts to abandonment, is the prosecution at an end. Bowens v. State, 157 Ga. App. 334, 277 S.E.2d 326 (1981).
When the defendant's plea to various criminal charges was vacated because the defendant was found to have lacked the requisite mental capacity to have made a knowing and voluntary plea and the defendant was to be tried on those charges, it was found that the trial court lacked jurisdiction over other charges that had been nolle prossed by the state at the time of the plea entry and, accordingly, the defendant could not be tried thereon; it was noted that the term of the trial court had expired, the order of nolle prosequi had not been vacated during that term, the limitations period had expired, and the state had not sought to refile those charges in a timely manner as provided for in O.C.G.A. §§ 17-3-2 and17-3-3. Carlisle v. State, 277 Ga. 99, 586 S.E.2d 240 (2003).
Because the state re-indicted the defendant within six months of the entry of the nolle prosequi pursuant to O.C.G.A. § 17-3-3, the trial court did not err in denying the defendant's plea in bar. Hicks v. State, 315 Ga. App. 779, 728 S.E.2d 294 (2012).
Second indictment did not need to allege special exception to statute of limitations.
- Trial court properly denied the defendant's motion in arrest of a judgment of conviction for burglary and theft by taking because the second indictment was filed within the six-month extension authorized by O.C.G.A. § 17-3-3 and, therefore, did not need to allege an exception to the four-year statute of limitation. Johnson v. State, 335 Ga. App. 886, 782 S.E.2d 50 (2016).
First indictment, while perhaps not perfect in form, was not void; therefore, under O.C.G.A. § 17-3-3, the statute of limitation was properly extended by an additional six months after the first indictment was quashed, and the state did not need to allege any exception to the limitation period in the second indictment for burglary or theft. Johnson v. State, 335 Ga. App. 886, 782 S.E.2d 50 (2016).
Extension of statute of limitations.
- O.C.G.A. § 17-3-3 provides an extension of the statute of limitations period and not an exception to the statute that must be pled in the indictment; indictment of the defendant over seven years after the commission of the crimes was proper when the charges had been nolle prossed after the defendant's earlier convictions had been reversed on appeal. Sallie v. State, 276 Ga. 506, 578 S.E.2d 444, cert. denied, 540 U.S. 902, 124 S. Ct. 251, 157 L. Ed. 2d 185 (2003).
O.C.G.A. § 17-3-3 specifies that the statute of limitations is extended six months if an indictment brought within the statute of limitations is later nolle prossed; 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 limitations even if the initial statute of limitations period has run. Sallie v. State, 276 Ga. 506, 578 S.E.2d 444, cert. denied, 540 U.S. 902, 124 S. Ct. 251, 157 L. Ed. 2d 185 (2003).
Trial court did not err by denying the defendant's special demurrer and motion to quash the second indictment on the same charges asserted in an earlier indictment, even though the second indictment was filed outside the statute of limitations period, because the first indictment was not void as a matter of law and, therefore. O.C.G.A. § 17-3-3 applied. Pursuant to O.C.G.A. § 15-12-60(d), even though the state nolle prossed the first indictment due to the incompetency of one grand juror and the trial court granted it, the first indictment itself was not rendered void. Batten v. State, 352 Ga. App. 629, 835 S.E.2d 686 (2019).
No extension of time.
- O.C.G.A. § 17-3-3 did not alter the running of the statute of limitation because the statute had no application to a prosecution in which the charge was dismissed over six months before the original statute of limitations expires. State v. Outen, 324 Ga. App. 457, 751 S.E.2d 109 (2013).
Georgia Court of Appeals properly concluded that O.C.G.A. § 17-3-3 did not give the state six additional months to obtain a second indictment against the appellee for felony vehicular homicide (FVH) after the state's unsuccessful attempt to appeal the dismissal of the FVH count of the first indictment as the appeal did not stay any time limit and the FVH count of the second indictment did not relate back to the date of the first indictment since only a misdemeanor was pending at that point. State v. Outen, 296 Ga. 40, 764 S.E.2d 848 (2014).
Accusation amended before expiration of statute of limitations.
- State could prosecute a count of the indictment under an amended accusation because the indictment was amended before the expiration of the two-year statute of limitation, O.C.G.A. § 17-3-1(d). Sevostiyanova v. State, 313 Ga. App. 729, 722 S.E.2d 333, cert. denied, No. S12C0968, 2012 Ga. LEXIS 612 (Ga. 2012).
Section inapplicable when indictment within initial limitations period.
- State did not need to take advantage of the statute of limitations extension provided by O.C.G.A. § 17-3-3 because the second indictment was filed within the initial limitations period. Phillips v. State, 298 Ga. App. 520, 680 S.E.2d 424 (2009).
Ineffective counsel not established by consenting to nolle prosequi.
- Defendant's trial counsel did not render ineffective assistance by consenting to the state's nolle prosequi, rather than insisting that the trial court rule on the defendant's special demurrer, because the state could have tried the defendant on the second indictment even if the trial court had quashed the first indictment; by the statute's plain terms, the savings provision of O.C.G.A. § 17-3-3 applies when a timely indictment is quashed, as well as when a nolle prosequi is entered. Hicks v. State, 315 Ga. App. 779, 728 S.E.2d 294 (2012).
Cited in State v. Shepherd Constr. Co., 248 Ga. 1, 281 S.E.2d 151 (1981); Bouldin v. State, 179 Ga. App. 394, 346 S.E.2d 871 (1986); Danuel v. State, 262 Ga. 349, 418 S.E.2d 45 (1992); Redding v. State, 205 Ga. App. 613, 423 S.E.2d 10 (1992); Gordon v. Caldwell, 303 Ga. 715, 814 S.E.2d 680 (2018).
Decisions Under Former Code 1933, § 27-601 After Enactment of Ga. L. 1968, p. 1249
To justify conviction, state must prove commission of offense which is not barred by statute of limitations. McNabb v. State, 120 Ga. App. 577, 171 S.E.2d 655 (1969).
Usual statutory period extends from act to indictment.
- In criminal cases, the statute of limitations runs, subject to special circumstances, from the time of the criminal act to the time of indictment, not from the time of the act to the time of the trial. Hall v. Hopper, 234 Ga. 625, 216 S.E.2d 839 (1975).
Except where nolle prosequi extends case six months.
- When a nolle prosequi is entered, the case is still pending for a period of six months and then terminates. Courtenay v. Randolph, 125 Ga. App. 581, 188 S.E.2d 396 (1972).
Application to accusations.
- Six-months limitation after the indictment was first quashed applies also to accusations. Jackson v. State, 140 Ga. App. 288, 231 S.E.2d 805 (1976).
To permit state to correct informal errors.
- Plain language and purport of this section is to allow the state within a six-month period the right to correct an informal mistake in a criminal warrant or indictment or suffer a final foreclosure of the right to prosecute the alleged criminal misconduct if the criminal process is not properly reinstituted. Bailey v. General Apt. Co., 139 Ga. App. 713, 229 S.E.2d 493 (1976).
Statute usually starts to run when crime known.
- Key to determining when the statute of limitations begins to run is to find when the offender or offense became known. State v. Brannon, 154 Ga. App. 285, 267 S.E.2d 888 (1980).
Nolle prosequi prima facie termination of prosecution and starts statute.
- Filing of a nolle prosequi by the prosecutor and dismissal of the action by the trial court constitutes prima facie a termination of the prosecution in favor of the person arrested and is sufficient to commence the running of the statute of limitations subject to the right of the state to reinstate the action within the six-month period. Bailey v. General Apt. Co., 139 Ga. App. 713, 229 S.E.2d 493 (1976).
Nolle prosequi final if no reindictment.
- If no further action is taken by the state to reinstate the indictment and toll the statute of limitations, the original nolle prosequi progresses from a prima facie termination of the action to an irrebuttable conclusion of finality. Bailey v. General Apt. Co., 139 Ga. App. 713, 229 S.E.2d 493 (1976).
Reindictment in half year continues prosecution.
- If a nolle prosequi is entered by the solicitor (now district attorney) with the consent of the court, a new indictment may be found within six months from the time the first indictment is quashed or the nolle prosequi entered and its effect is not necessarily the ending of the prosecution, but the continuance of the prosecution. Not until the expiration of the six-months period within which a new indictment for the same offense may be preferred, or some other act or declaration which amounts to an abandonment, is the prosecution at an end. Earlywine v. Strickland, 145 Ga. App. 626, 244 S.E.2d 118 (1978).
Continuation of original prosecution.
- If one arrested on a criminal warrant is discharged at the instance of the prosecution and without prejudice, the prosecution with due diligence and under the appropriate circumstances, may follow up with a new and valid prosecution, carrying the prosecution on in a court having jurisdiction to try the case upon the case's merits. This amounts to a continuation of the original prosecution. Bailey v. General Apt. Co., 139 Ga. App. 713, 229 S.E.2d 493 (1976).
Malicious prosecution suit brought within half year.
- Net effect of the extension provision of the statute of limitation is to render dubious the practicality of bringing a malicious prosecution action within six months of the nolle prosequi of the basic criminal complaint at the instance of the state since during that six-month period the action is not yet final. Bailey v. General Apt. Co., 139 Ga. App. 713, 229 S.E.2d 493 (1976).
Decisions Under Former Code 1933, § 27-601 Before Enactment of Ga. L. 1968, p. 1249 Five year delay between offense and new indictment.
- Mere fact that some five years intervened between the dates of offenses first charged and the date when the offenses were included in a new accusation by virtue of law does not render the accusation subject to demurrer (now motion to dismiss) or motion to quash on the ground that such evidences a purpose of the prosecutor to place the defendant's character in issue or that such violates the due process clause of the United States Constitution or the State Constitution guarantees of a public and fair trial. Hodges v. State, 98 Ga. App. 97, 104 S.E.2d 704 (1958), rev'd on other grounds, 214 Ga. 614, 106 S.E.2d 795 (1959).
Nolle prosequied after five years does not bar accusation filed during year of crime.
- When each count of an accusation alleges that the charge embodied therein had originally been filed in the form of an accusation in the county criminal court in the same year in which the cause of action arose, and that such original accusation had subsequently been nol prossed more than five years later, the allegations are sufficient to place the counts of the accusation within the purview of the law and neither of the counts nor the accusation as a whole is barred by the statute of limitations. Hodges v. State, 98 Ga. App. 97, 104 S.E.2d 704 (1958), rev'd on other grounds, 214 Ga. 614, 106 S.E.2d 14 (1959).
Origins of section.
- Georgia Laws 1855-56, p. 233 dealt with statutes of limitations in both civil and criminal cases, but the words "suit" and "plaintiff" were used therein in reference to civil actions only, and the word "indictments" seems to have been used wherever criminal offenses are dealt with; there is accordingly no intrinsic evidence that the final sentence of this section which first appeared in the Code of 1861, has its origin with the Act of 1855-56, but neither is there any positive indication that the original codifiers did not have it in mind when the original codifiers wrote the provision in the criminal limitations statute. Alewine v. State, 103 Ga. App. 120, 118 S.E.2d 499 (1961).
Section applies to accusations as well as indictments. Hodges v. State, 214 Ga. 614, 106 S.E.2d 795 (1959).
Section is a statute of limitations. Alewine v. State, 103 Ga. App. 120, 118 S.E.2d 499 (1961).
Extension of statute of limitations.
- This section extends the limitations fixed by other provisions of the law so that if the first indictment is returned within the time limited and thereafter quashed or a nolle prosequi entered for some informality and a second indictment is taken out within six months after such dismissal, the second indictment will be good although the offense charged would otherwise have been barred by the statute of limitations. Alewine v. State, 103 Ga. App. 120, 118 S.E.2d 499 (1961).
If statute of limitations ran out at time of new indictment.
- If a defendant is indicted and the indictment subsequently quashed or a nolle prosequi entered because of some informality therein, the state, if the state desires again to charge the defendant with the same offense, must do so within a period of six months after the dismissal of the first indictment, and this is so regardless of whether or not the bar of the statute of limitations as applied to criminal offenses generally has run at the time of the new indictment. Alewine v. State, 103 Ga. App. 120, 118 S.E.2d 499 (1961).
Second indictment showing first one nol prossed only for informality.
- In order to prevent an indictment or accusation which was returned more than two years after the commission of a known misdemeanor offense from being barred by the statute of limitations when it is returned within six months after the nolle prosequi of a former indictment, the second indictment or accusation must show that the former was not nol prossed because of a fatal defect, or because it was void, but only because of an "informality" or some other good reason which did not render it void. Hodges v. State, 214 Ga. 614, 106 S.E.2d 795 (1959).
Statute tolled if accused flees.
- After an indictment or accusation has been quashed or a nolle prosequi entered for informality (assuming that the original indictment does charge an offense and is not void on its face) then the prosecution must be renewed within a six-month period unless some other reason to toll the period of limitation is in existence, such as the fact that the offender absconds from the state or so conceals so that the offender cannot be arrested. Alewine v. State, 103 Ga. App. 120, 118 S.E.2d 499 (1961).
Difficulty in reconvening grand jury not grounds for interpreting section.
- Mere fact that the grand jury in session at the time nolle prosequi was entered was disqualified from returning another indictment for technical reasons as a result of which the murder indictment was quashed and that it would have been necessary for the trial court to call a special session of the grand jury in order to obtain a new indictment within the six-month period, was no reason for giving the statute a different meaning than that attributable to it by its plain language and former interpretation. Alewine v. State, 103 Ga. App. 120, 118 S.E.2d 499 (1961).
Accusation showing statute elapsed and no exceptions.
- Since time is limited for proffering an accusation, it is essential to the validity of the accusation that the time alleged should appear to be within the maximum allotted and if the offense appears on the face of the accusation to be barred by the statute of limitations, and no exception is alleged to toll the statute, although no demurrer (now motion to dismiss) was filed and the motion in arrest of judgment was filed after the trial during the trial term, the failure to allege such exception is fatal and the motion in arrest should be sustained. Love v. State, 70 Ga. App. 40, 27 S.E.2d 337 (1943).
Court's authority.
- Court has no authority, 15 months after nolle prosequi order is entered, to vacate the order of nolle prosequi and to reinstate the indictment as such court action is clearly in contravention of the provision of this section. Jacobs v. State, 95 Ga. App. 155, 97 S.E.2d 528 (1957).
Decisions Under Former Penal Code 1910, § 30 Prosecutor can remedy minor defect within time limits.
- When the prosecutor has been defeated by some matter not affecting the merits, some defect or informality which the prosecutor can remedy or avoid by new process, the statute will not prevent the prosecutor from so doing, provided the prosecutor follows it within the time allowed by law. Heaton v. State, 40 Ga. App. 87, 149 S.E. 62 (1929).
Merely voidable indictment tolls statute if timely.
- When the original indictment alleged that the indictment was found within the time limit after the offense became known, and the indictment was quashed for a mere informality, and therefore was not void, but merely voidable, the indictment did toll the statute. Heaton v. State, 40 Ga. App. 87, 149 S.E. 62 (1929).
RESEARCH REFERENCES
Am. Jur. 2d.
- 21 Am. Jur. 2d, Criminal Law, §§ 37, 144 et seq.
C.J.S.- 22 C.J.S., Criminal Procedure and Rights of the Accused, § 1 et seq.
ALR.
- Burden on state to show that crime was committed within limitation period, 13 A.L.R. 1446.
Right of prosecution to review of decision quashing or dismissing indictment or information, or sustaining demurrer thereto, 92 A.L.R. 1137.
Nolle prosequi or discontinuance of prosecution in one court and instituting new prosecution in another court of coordinate jurisdiction, 117 A.L.R. 423.
Necessity of alleging in indictment or information limitation-tolling facts, 52 A.L.R.3d 922.
When statute of limitations begins to run against action for conversion of property by theft, 79 A.L.R.3d 847.
Finding or return of indictment, or filing of information, as tolling limitation period, 18 A.L.R.4th 1202.
Issuance or service of state-court arrest warrant, summons, citation, or other process as tolling criminal statute of limitations, 71 A.L.R.4th 554.
CHAPTER 4 ARREST OF PERSONS Article 1 General Provisions.- Constitutional guarantee against deprivation of liberty without due process, Ga. Const. 1983, Art. I, Sec. I, Para. I.
Privilege of General Assembly members from arrest, Ga. Const. 1983, Art. III, Sec. IV, Para. IX.
Circumstances justifying taking of minors into custody, § 15-11-17.
Privilege of voter registration officers from arrest, § 21-2-215.
Prohibiting peace officer from exercising power of arrest, § 35-8-17.
Apprehension of mentally ill persons for transfer to emergency receiving facilities, § 37-3-40 et seq.
Apprehension of alcoholics and others for transfer to emergency receiving facilities, § 37-7-40 et seq.
Exemption of members of organized militia from arrest on civil process, § 38-2-272.
Arrest powers of members of militia in emergencies, § 38-2-307.
Law reviews.- For note, "The Law of Arrest," see 17 Mercer L. Rev. 300 (1965).
JUDICIAL DECISIONS
If the defendant has been indicted and convicted, an illegal arrest is not by itself grounds for reversal. Thompson v. State, 155 Ga. App. 101, 270 S.E.2d 313 (1980).
Cited in Clarke v. State, 158 Ga. App. 749, 282 S.E.2d 1 (1981).
OPINIONS OF THE ATTORNEY GENERAL
No delegation of arrest powers to ex-military officers or rangers.
- No agency of state government may delegate the government's arrest powers to retired military officers or officers of a group of horse rangers. 1969 Op. Att'y Gen. No. 69-24.
RESEARCH REFERENCES
Am. Jur. 2d.
- 21 Am. Jur. 2d, Criminal Law, § 544 et seq. 67 Am. Jur. 2d, Rewards, § 1 et seq.
C.J.S.- 77 C.J.S., Rewards and Bounties, § 1 et seq.
ALR.
- Allowing attorney to exceed allotted time for argument as reversible error, 1 A.L.R. 1257.
Degree of force that may be employed in arresting one charged with a misdemeanor, 3 A.L.R. 1170; 42 A.L.R. 1200.
Constitutional guaranties against unreasonable searches and seizures as applied to search for or seizure of intoxicating liquor, 3 A.L.R. 1514; 13 A.L.R. 1316; 27 A.L.R. 709; 39 A.L.R. 811; 41 A.L.R. 1539; 74 A.L.R. 1418.
Waiver of privilege against or nonliability to arrest in civil action, 8 A.L.R. 754.
Time at which an arrest is made as affecting its legality or liability for making it, 9 A.L.R. 1350.
Necessity of showing warrant upon making arrest under warrant, 40 A.L.R. 62.
Liability for false imprisonment of officer executing warrant for arrest as affected by its being returnable to wrong court, 40 A.L.R. 290.
Territorial extent of power to arrest under a warrant, 61 A.L.R. 377.
Unlawfulness of arrest as affecting jurisdiction or power of court to proceed in criminal case, 96 A.L.R. 982.
Necessity of informing suspect of rights under privilege against self-incrim- ination, prior to police interrogation, 10 A.L.R.3d 1054.
Liability, for false arrest or imprisonment, of private person detaining child, 20 A.L.R.3d 1441.
Uninvited entry into another's living quarters as invasion of privacy, 56 A.L.R.3d 434.
Right to resist excessive force used in accomplishing lawful arrest, 77 A.L.R.3d 281.
Modern status: right of peace officer to use deadly force in attempting to arrest fleeing felon, 83 A.L.R.3d 174.
Peace officer's civil liability for death or personal injuries caused by intentional force in arresting misdemeanant, 83 A.L.R.3d 238.
Knowledge of reward as condition of right thereto, 86 A.L.R.3d 1142.
Official immunity of national guard members, 52 A.L.R.4th 1095.
Issuance or service of state-court arrest warrant, summons, citation, or other process as tolling criminal statute of limitations, 71 A.L.R.4th 554.
Burden of proof in civil action for using unreasonable force in making arrest as to reasonableness of force used, 82 A.L.R.4th 598.
ARTICLE 1 GENERAL PROVISIONS
U.S. Code.
- Disposition of criminal cases, 18 U.S.C. § 3165.