☢ test - Í

erroneously held that second indictment didn’t relate back because it gave defendant notice for the first time as to the specific allegations of reckless driving against him. “However, the FVH [felony vehicular homicide] count of the second indictment was narrower than the original FVH count; it specified the particular theory of reckless driving that the State intended to pursue, thereby limiting the range of evidence and arguments that Outen previously would have had to confront at trial. From a notice standpoint, the additional allegations in the second indictment made it easier, rather than harder, for Outen to prepare his defense.” Correct rationale for rejecting relation-back here is that the remaining count of misdemeanor vehicular homicide couldn’t save the FVH count. “Compared with the sole pending charge of misdemeanor vehicular homicide, this felony count alleged a violation of a different statute, contained different elements, relied on different evidence, and exposed Outen to a potentially far greater sentence. [Cit.] Consequently, the FVH count of the second indictment did not relate back to the date of the then-pending indictment for misdemeanor vehicular homicide.” Kenerly v. State, 325 Ga.App. 412, 750 S.E.2d 822 (November 22, 2013). Physical precedent only. Interlocutory appeal from denial of plea in bar, alleging expiration of statutes of limitation; stipulated facts show that State didn’t have knowledge of the crimes until date within the applicable statutes. Kenerly was a former county commissioner charged with bribery and failure to disclose a financial interest in property zoned by the county. Held, 1. district attorney’s alleged delay in investigating charges of corruption against Kenerly didn’t vitiate the rule that “‘under OCGA § 17–3–2(2), the statute of limitation does not run while the crime or the person who committed the crime is “unknown” —it does not say “and could not have been discovered through the exercise of reasonable diligence,”’” quoting Campbell (February 9, 2009), below. See further notes there and under Royal (February 7, 2012), below. 2. Defendant’s prior disclosure of interest in same property in 2003 didn’t put county/State on notice of his interest in property in 2005. “[T]he record does not show that Kenerly disclosed in the 2003 letter the extent of his interest in the property, as required by OCGA § 36–67A–2. Therefore, Stephens could not have known that Kenerly's reported interest in property in 2003 concerned the same land at issue in the 2005 zoning application. And Kenerly provides no authority which supports his position that his mere absence from the vote on the 2005 zoning application imputed to persons observing the vote, actual knowledge that he had a financial interest in the subject property. See generally Royal, supra (statute of limitation did not begin to run on the date that a tipster had reported a crime, but rather on the date that an investigator first substantiated the tipster's allegations).” Vaughn v. State, 324 Ga.App. 289, 750 S.E.2d 375 (October 21, 2013). Whole court opinion. Following non-negotiated guilty plea to theft by deception, trial court erred in ordering victim restitution of amounts taken beyond the applicable limitations period. Overruling Beall v. State, 252 Ga.App. 138, 139(2) (555 S.E.2d 788) (2001) to the extent that it holds that “entry of a guilty plea waives statute of limitation defenses.” “At a restitution hearing, the State has the burden of demonstrating the amount of loss sustained by the victim by the preponderance of the evidence, OCGA § 17–14–7(b), and the amount of restitution ordered shall not exceed the victim's damages. OCGA § 17–14–9. [fn] OCGA § 17–14–2(2) defines ‘damages’ for purpose of the restitution statute as ‘all special damages which a victim could recover against an offender in a civil action, ... based on the same act or acts for which the offender is sentenced [.]’ (emphasis supplied). See also Mayfield v. State, 307 Ga.App. 630, 631(2)(b) (705 S.E.2d 717) (2011). The statute of limitation for a civil suit for recovery of converted funds is four years after the right of action accrues. OCGA § 9–3–32.” Pennington v. State, 323 Ga.App. 92, 746 S.E.2d 768 (July 16, 2013). Physical precedent only. Theft by conversion convictions reversed; trial court erred in denying demurrer based on statute of limitation. Contrary to State’s argument, indictment, brought after running of statute, wasn’t a “superseding indictment,” as it substantially broadened the charges against defendant. “In this case, the record shows that the [original] accusation only charged Pennington with four counts of theft by conversion, that each offense was allegedly committed within eight- to twelve-month periods in either 2006 or 2007, and that each count charged Pennington with illegally taking funds from ‘Warren Pennington's Payroll Escrow Account,’ without naming any individual or business who had deposited funds into that escrow account. [FN14. In fact, during the motion hearing, the prosecutor specifically admitted that she filed the indictment because the accusation was legally insufficient to withstand a demurrer. The hearing transcript shows that the prosecutor conceded the following facts: that the accusation ‘had no victims listed, simply said that [Pennington] took money out of this account, and that was why I ... reindict[ed] the case’; that, if the State was still proceeding on the accusation, ‘I would agree with [Pennington] that it was not specific enough’ to survive a demurrer ‘and that's why I took the time to reindict the case’; and that the accusation ‘was not specific enough and would have opened up the defendant to a double jeopardy issue.’ Despite these admissions, however, the State has failed to cite to any authority that would authorize an indictment to relate back to a previously filed, but admittedly deficient, accusation or indictment. ] In contrast, the [subsequent] indictment charged Pennington with committing three counts of theft by conversion during certain periods in 2006 and