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I.

ACCUSATION/INDICTMENT A. ALTERATION OF INDICTMENT

Green v. State, 292 Ga. 451, 738 S.E.2d 582 (February 18, 2013). Interlocutory appeal in murder prosecution; trial court properly denied special demurrer to indictment, based on erroneous filing date entered by clerk. “The grand jury returned the indictment in open court on May 17, 2011, but the court clerk entered March 17, 2011 as the date of return on the indictment and in the criminal docket book.” The offenses allegedly occurred on April 16, 2011 – before the date entered by the clerk. “At the hearing on the special demurrer, the clerk testified that she had made a mistake in recording the indictment's return date and changed the date from March to May after she realized her mistake.” Held, the error was an immaterial defect, properly corrected by the clerk. “When a special demurrer points out an immaterial defect, the trial court need not dismiss the defective charge, but may strike out or correct the erroneous portion of the indictment. See Wagner v. State, 282 Ga. 149(1) (646 S.E.2d 676) (2007). Among the defects that we have previously found immaterial in an indictment are the misnaming of a code section, the misspelling of a drug or grand juror's name, and the omission of the defendant's middle initial. See id. at 151; Bailey v. State, 280 Ga. 884 (635 S.E.2d 137) (2006), overruled on other grounds by Wagner, 282 Ga. at 150; Harmon v. State, 235 Ga. 329(1) (219 S.E.2d 441) (1975); Veal v. State, 116 Ga. 589(4) (42 SE 705) (1902).” Follows Newham v. State, 35 Ga.App. 391(1) (133 SE 650) (1926) (similar facts to Green ). Wagner v. State, 282 Ga. 149, 646 S.E.2d 676 (June 11, 2007). Interlocutory appeal in murder prosecution. Trial court may correct immaterial defects in indictment when challenged by pre-trial demurrer. “[W]here a special demurrer points out an immaterial defect, the trial court should strike out or otherwise correct the immaterial defect. Where a special demurrer points out a material defect, the trial court must quash the defective count of the indictment.” Disapproves Bailey v. State, 280 Ga. 884 (635 S.E.2d 137) (2006), “to the extent that Bailey can be construed to hold that a material defect that is not prejudicial to the defendant does not require the quashing of a defective count of an indictment.” Two non-material defects here: failure to state that the murder victim was “a human being” (“ we direct the trial court to correct the indictment in light of our discussion above ”); and reference to the wrong code section for an offense (concealment of a death) ( the trial court “should strike the incorrect Code section from the indictment” ). Accord, Green (February 18, 2013), above (erroneous filing date was an immaterial defect properly corrected by the clerk). Adams v. State, 282 Ga.App. 819, 640 S.E.2d 329 (November 27, 2006). Aggravated assault conviction affirmed; typographical error in indictment was properly corrected by striking through the incorrect date. “With the exception of Count 2, all of the counts on the indictment denote October 2, 2005 as the date the offenses occurred. In Count 2, the typed text denotes ‘the 26th day of October, 2005’ as the date the offense occurred, but there is a hand-written slash through the ‘6’ in ‘26th,’ indicating that the correct date is October 2, 2005. However, Adams failed to file a special demurrer before pleading not guilty to the charges, and thus waived his right to be tried on a perfect indictment. See Stinson v. State, 279 Ga. 177, 179(2), 611 S.E.2d 52 (2005). Moreover, given the correction of the indictment’s error, Adams has not been prejudiced.” Fleming v. State, 276 Ga.App. 491, 623 S.E.2d 696 (November 21, 2005). After guilty plea to aggravated assault, trial court erred in denying out-of-time appeal without hearing, based on void indictment. “During the guilty plea hearing, the indictment was altered by the state after Fleming denied that he was guilty of the aggravated assault charge as returned by the grand jury.” Prosecutor changed the allegation to fit what defendant was wiling to plead guilty to. “It is well established in this and other jurisdictions that an indictment can not be materially amended by striking from or adding to its allegations, except by the grand jury, and only before it is returned into court. It is bad practice for the court to do either; and if such additions or subtractions materially affect the indictment, it becomes void and can not be the basis of a conviction. State v. Eubanks, 239 Ga. 483, 490 (238 S.E.2d 38) (1977) (citations and punctuation omitted).” B. AMENDMENT OF ACCUSATION Barghi v. State, 334 Ga.App. 409, 779 S.E.2d 373 (October 14, 2015). DUI and related convictions affirmed; slight amendment to accusation didn’t “commence a new prosecution, but rather, constituted a continuation of the original prosecution. Accordingly, the trial court did not err in denying Barghi’s plea in bar on the ground that the statute of limitation for the two amended DUI counts expired. See Prindle v. State, 240 Ga.App. 461, 461–62(1), 523 S.E.2d 44