Opinion
36521.
DECIDED FEBRUARY 18, 1957.
Nolle prosequi order vacated. Before Judge Brooke, Presiding. Haralson Superior Court. October 8, 1956.
D. B. Howe, for plaintiff in error.
Robert J. Noland, Solicitor-General, James I. Parker, Assistant Solicitor-General, contra.
When a nolle prosequi order has been presented by the State's attorney to a qualified judge in term time, without fraud, and the judge signs the same, a new indictment may be returned against the defendant within six months thereafter, provided the new indictment is within the statute of limitation of the crime involved.
DECIDED FEBRUARY 18, 1957.
Hammond G. Jacobs was indicted in the Superior Court of Haralson County on July 19, 1949, for the offense of robbery. On July 26, 1954, the indictment was handled by means of a nolle prosequi order by a judge of the superior court in term time. On October 24, 1955, after the expiration of the term at which the nolle prosequi order had been entered, a duly qualified judge vacated the order of nolle prosequi and reinstated the indictment. On October 8, 1956, a judge of the superior court denied the defendant's motion to vacate the order reinstating the indictment. On this judgment the defendant assigns error here. It is stipulated by counsel for both parties that if this court holds that the trial judge was without authority to reinstate the indictment a new indictment can not be returned against the defendant.
Code § 27-601, after providing the statute of limitations in which indictments may be returned, further provides in Subsection 4: "If the indictment is found within the time limited, and for any informality shall be quashed or a nolle prosequi entered, a new indictment may be found and prosecuted within six months from time the first is quashed or the nolle prosequi entered." From the facts above stated it would thus be seen that 15 months and 28 days after the nolle prosequi order was entered the court sought to vacate the order of nolle prosequi and to reinstate the indictment. This was clearly in contravention of the provision of Code § 27-601 Subsection 4 quoted above. The Code section states distinctly and clearly that where a nolle prosequi order is entered another indictment may be obtained provided it is done within six months. Moreover, we might add here that the six-months period allowed for the return of a new indictment must be within the statute of limitation of the crime involved. Thus it will be seen that the court had no authority to reinstate the indictment or return after the expiration of six months from the date of the nolle prosequi order (and this must be within the statute of limitation of the crime involved).
The court erred in setting aside the nolle prosequi order.
Judgment reversed. Carlisle, J., concurs. Townsend, J., concurs specially.
I concur in the judgment of reversal. I also agree with all that is said in the majority opinion, except that I consider it irrelevant to the issues made by the assignment of error here. The question for decision is not whether a new indictment may be returned against this defendant (which counsel for both sides stipulate cannot be done) but whether the trial court may, 15 months after entering an order of nolle prosequi, vacate such order and thus reinstate the original indictment. It is well settled that the trial court, in either a civil or a criminal case, has no jurisdiction to set aside a dismissal and reinstate a cause after the expiration of the term at which it was dismissed, nor can a judgment of the court be changed, amended or modified after the expiration of the term at which such judgment was entered. Rutland v. State, 14 Ga. App. 746 ( 82 S.E. 293); Rogers v. Rigell, 183 Ga. 455 ( 188 S.E. 704); Carswell v. Shannon, 209 Ga. 596 ( 74 S.E.2d 850); East Tenn. Va. Ga. Ry. Co. v. Greene, 95 Ga. 35 ( 22 S.E. 36); Alley v. Halcombe, 96 Ga. 810 ( 22 S.E. 901). Accordingly, the court here had no jurisdiction to vacate an order of nolle prosequi, not procured by fraud, at a previous term of the court.