Smith v. State

¶1dissenting.

¶2The only issue in this case is whether, as a matter of law, arraignment and joinder of issue on an accusation relates to a nonsubstantive amendment thereto. If it does, then entering a nolle prosequi on the accusation and its amendment after a jury has been impaneled and sworn precludes retrial on the charges in the nolle prossed documents,8 and the denial of Smith’s plea in bar was error.

¶3It is undisputed that Smith was arraigned on Accusation No. SU-01-CR-1437 and that issue was joined. It is also undisputed that, thereafter, the State made a single, nonsubstantive amendment to Accusation No. SU-01-CR-1437 in order to change one of the counts of theft by retaining so that it reflected that the rightful owner of the two boxes of bubble gum unlawfully retained was “Party Time,” not “Mark’s Hallmark” store.9 During trial, it was discovered that Smith *234was not “arraigned” on the single amendment to the Accusation. The trial court granted the State’s motion to enter a nolle prosequi “as to the original and amended accusation because the defendant had not been arraigned prior to trial.”

¶4This Court has previously found no authority for the proposition that a nonsubstantive, corrective amendment to an accusation requires the State to arraign a defendant a second time before proceeding to trial.10 The purpose of arraignment is notice,11 which is not frustrated when a nonsubstantive change is made to an accusation prior to trial. Indeed, we have held that the State may make a nonsubstantive amendment to an accusation in the middle of trial.12 An amendment to an accusation is not a “new” prosecution, but a continuation of the original.13 Accordingly, Smith’s arraignment on Accusation No. SU-01-CR-1437 was effective and related to the single corrective amendment made to that Accusation; “re-arraignment” was not required.14 After jeopardy had attached, the nolle prosequi of the Accusation and amendment without Smith’s consent precluded retrial on the charges contained in those documents.15

¶5The majority seeks to avoid this result because “Smith took the position at trial that the amended accusation was in fact a superseding charging instrument.” But, a criminal charging document such as an accusation is a legal instrument, the function and sufficiency of which is determined as a matter of law, not fact.16 So, whether defendant Smith believed the amendment was a “superseding charging instrument” does not control when — as a matter of law — the amendment was not a superseding charging instrument.17 The duty of this Court to consider the legal ramifications of offenses contained in a charging instrument in relation to Georgia’s statutory bar against successive prosecutions has never been usurped by a party’s incorrect interpretation.18 In that regard, it harms credibility for this Court to refuse to distinguish cases involving arraignment and prosecution on separate indictments, such as Hubbard v. State,19*235when the sole issue before us is the nexus between an accusation, an arraignment thereon, and a single nonsubstantive amendment to that accusation, not separate indictments. Further, contrary to the assertion of the majority, the error in this case arises through the entry of the nolle prosequi, which was not “induced” by Smith who objected to it. Any “induced error” belongs to the State which moved to nolle prosse the Accusation and amendment, even while the prosecutor recognized that such motion was “procedurally in terms of double jeopardy I think . . . kind of tricky.”

¶6Under the circumstances presented in this case, I would hold that the nonconsensual entry of a nolle prosequi on the Accusation and its amendment after the jury was impaneled and sworn precludes Smith’s retrial on the charges contained therein. Consequently, it was error to deny his plea in bar, and I respectfully dissent.

¶7I am authorized to state that Judge Miller and Judge Adams join in this dissent.