☢ test - Í

Butler v. State, 298 Ga.App. 129, 679 S.E.2d 361 (May 28, 2009). At defendant’s trial for furnishing alcohol to minors, no mistrial was required where accusation was amended without notice to defendant, striking through the name of one of two alleged victims (who was not a minor, but a police investigator). “Although based on the record we are unable to determine whether Butler was served with a copy of the amended accusation, it is doubtful that he was surprised by the change given the fact that prior to his moving for a mistrial, both the agent and the underage investigator had testified extensively as to their respective roles in the undercover operation. In fact, Butler has made no showing that the deletion of the agent's name in the amended accusation ‘impeded his ability to present a defense in any way.’ Romo [ v. State, 288 Ga.App. 237, 241(2) (653 S.E.2d 832) (2007)]. Accordingly, the trial court did not abuse its discretion in denying Butler's motion for a mistrial and in proceeding with trial.” Romo v. State, 288 Ga.App. 237, 653 S.E.2d 832 (November 5, 2007). No error in allowing State to amend accusation three days before trial: original accusation accused defendant of touching “the intimate body parts” of victim; the amendment specified the victim’s breast. Certificate of service showed it was sent to defense counsel by facsimile and regular mail. Court read the amended accusation to the potential jurors during jury selection. After jury selection, counsel moved for mistrial, contending he had no knowledge of the amendment until hearing the court read it to the jurors. Held, trial court properly denied the motion for mistrial. Counsel acknowledged that the police report identified the body part in question as victim’s breast; prosecutor also identified it at pretrial conference “several weeks before trial.” “The trial court ultimately determined that the State had properly notified Romo of the amendment and that Romo had not been harmed by its timing.” See OCGA § 17-7-71(f). Martin v. State, 278 Ga.App. 465, 629 S.E.2d 134 (March 24, 2006). Trial court erred in refusing continuance to which defendant was entitled by right. Defendant was originally charged with “with two counts of family violence battery for choking and biting his wife, and two counts of simple battery for grabbing his wife and putting her in a ‘head lock.’ Two months later, and less than ten minutes before the August 29, 2005 trial, the State amended its accusation to add three counts of family violence battery and five counts of battery, each of which charged Martin with either choking, biting, striking, or causing visible bodily harm to his wife. In addition, the amended accusation added a thirteenth count charging Martin with disorderly conduct ‘by acting in a tumultuous manner toward [his wife,] whereby she was placed in reasonable fear of her safety, in violation of OCGA § 16-11-39(a)(1).’” “OCGA § 17-7-71(f) states as follows: ‘Prior to trial, the prosecuting attorney may amend the accusation, summons, or any citation to allege or to change the allegations regarding any offense arising out of the same conduct of the defendant which gave rise to any offense alleged or attempted to be alleged in the original accusation, summons, or citation. A copy of any such amendment shall be served upon the defendant or his or her counsel and the original filed with the clerk of the court. On motion, the court shall grant the defendant a continuance which is reasonably necessitated by an amendment. If any additional charges against the defendant are made the judge shall advise the defendant that he or she has an automatic right to a continuance . ’ (Emphasis supplied.) Charge of disorderly conduct upon which defendant was convicted was clearly an “additional charge,” as it required no proof of physical contact or harm, unlike the original charges. Not clear whether the added battery charges would have been considered “additional charges,” since defendant was acquitted on all battery charges. Smith v. State, 279 Ga. 396, 614 S.E.2d 79 (June 6, 2005). Reversing 268 Ga.App. 231, 601 S.E.2d 708 (June 14, 2004) and defendant’s convictions for theft and obstruction. After arraignment, defendant’s accusation for theft counts was amended to change the name of the owner in one count. Case proceeded to trial, whereupon the parties realized that Smith had not been re-arraigned after the amendment. Smith then moved for mistrial. State objected and moved to nolle pros the accusation. The Court granted the nolle pros. State then indicted defendant for same crimes and defendant claimed double jeopardy, which was denied. Supreme Court reverses, holding that the amended accusation was not a superceding charging instrument because it only changed the identity of the owner of the property; re-arraignment thus was not necessary, jeopardy attached at the first trial, there was no manifest necessity for the nolle pros, and defendant thus is entitled to claim former jeopardy. “If the amended accusation was a superceding charging instrument, jeopardy would not attach by virtue of trial without arraignment on that charging instrument. Hardwick v. State, 231 Ga. 181(6), 200 S.E.2d 728 (1973) (‘Until arraignment or a waiver thereof there can be no jury impaneled and no placing of the defendant in jeopardy.’). If the amendment did not create a new charging instrument, the previous arraignment was sufficient ( Vanorsdall v. State, 241 Ga.App. 871(2a), 528 S.E.2d 312 (2000)) and, therefore, jeopardy attached when the jury was impaneled and sworn ( Laster v. State, 268 Ga. 172(1), 486 S.E.2d 153 (1997)), before the nolle prosequi was entered. Carley dissents, agreeing with Court of Appeals that any error was induced by defendant’s argument that the amendment was a superceding instrument, requiring re-arraignment.