Cotton v

State, 263 Ga. App. 843, 589 S.E.2d 610 (2003). Indictment for misdemeanor battery sufficient. — Trial court correctly denied the defendant’s motion to quash a count alleging misdemeanor battery because the allegations of the count were not too vague, uncertain, or unclear as contended by the defendant since the allegations met the language of the statute and were sufficiently technical and correct; further, the specific bodily harm did not have to be alleged. State v. Tate, 262 Ga. App. 311, 585 S.E.2d 224 (2003). Accusation for battery, family violence, and criminal trespass that alleged that the defendant injured the victim by striking the victim, causing a visibly bloody lip, and that the defendant knocked a hole in the victim’s closet door, was sufficient under O.C.G.A. § 17-7-71(c). There was no requirement that the accusation state the instrumentality used by the defendant because the instrumentality was not an element of any of the charged crimes. State v. Leatherwood, 326 Ga. App. 730, 757 S.E.2d 434 (2014). Accusation misstated defendant’s age. — Accusation that charged the defendant, age 19, with being a minor under 18 while driving with an alcohol concentration of .02 or more, met the requirements of O.C.G.A. § 17-7-71(c) because the accusation cited O.C.G.A. § 40-6-391, the correct statute under which the defen- 502 dant was charged, and the defendant could not be surprised with proof of the defendant’s age. Mills v. State, 271 Ga. App. 506, 610 S.E.2d 80 (2004). Double jeopardy did not bar prosecution on new accusation. — Prosecution of the 2015 charge against the defendant was not barred on the ground of double jeopardy or failure to prosecute timely because the defendant made no showing that the 2015 charge arose from the illegal storage of the rubbish and no additional items were at issue in the 2010 charge. King v. State, 300 Ga. 180, 794 S.E.2d 110 (2016). There was no error in trial court’s denial of motion for directed verdict of acquittal based upon the assertion that the probata did not conform to the allegata, in that the original accusation charged that the defendant received money from a prostitute without lawful consideration on February 23, 1983, but the evidence at trial showed that the offense occurred on February 2, 1983, because time is not a material element of the offense of pimping and the state proved that the offense occurred within the statute of limitation prior to the return of the indictment. Angevine v. State, 171 Ga. App. 658, 320 S.E.2d 578 (1984). State failed to prove a tolling of the statute of limitation by means of an amendment to an earlier accusation since there was no showing that the crimes charged in the earlier accusation arose out of the same conduct which gave rise to the offenses alleged in the subsequent accusation. Tarver v. State, 198 Ga. App. 634, 402 S.E.2d 365 (1991). Traffic violation pending, which tolled limitations period. — Summary judgment in favor of the defendant was reversed because the plaintiff met the plaintiff ’s burden of producing evidence that the two year limitation period applicable to the plaintiff ’s tort suit had not run because the limiation period was tolled as the plaintiff established that the prosecution of the defendant for the traffic violation remained pending in municipal court until November 18, 2014, which was less than two years before the lawsuit was filed. Williams v. Durden, 347 Ga. App. 363, 819 S.E.2d 524 (2018). 17-7-71 Charging instrument defective. — Trial court’s denial of a defendant’s general demurrer to a charge against the defendant of violation of a family violence order, in violation of O.C.G.A. § 16-5-95(a), was error as the accusation failed to state any specific acts that violated any specific terms of a family violence order, such that the accusation failed to set out the essential elements of the crime or to apprise the defendant properly of the charge pursuant to O.C.G.A. § 17-7-71(c). Newsome v. State, 296 Ga. App. 490, 675 S.E.2d 229 (2009). Charging instrument not defective. — Accusation was not fatally defective because the accusation informed the defendants of the charges against the defendants and protected the defendants against another prosecution for the same offense, and the defendants could not admit that the defendants passed in an area defined by markings as a no-passing zone without being guilty of the crime charged. Moreover, to the extent that the defendants’ attack on the accusation could be read as a special demurrer, seeking greater specificity, it was waived by the defendants’ failure to raise the issue within ten days after the defendants pled to the accusation. Haynes-Turner v. State, 289 Ga. App. 652, 658 S.E.2d 203 (2008). Accusation charging a defendant with causing the unjustifiable physical pain or suffering of a dog by failing to provide adequate food or water or medical care was sufficient to charge the defendant with cruelty to animals pursuant to O.C.G.A. § 16-12-4. Ford v. State, 306 Ga. App. 606, 703 S.E.2d 71 (2010). Harmless error analysis. — Even if the failure to name the specific drug involved was error, applying the harmless error standard on appeal, as the defendant was a less than safe driver because the defendant was under the influence of drugs, the defendant was in the best position to know which drug or drugs the defendant ingested, therefore the defendant was not prejudiced or misled and there was no violation of O.C.G.A. § 17-7-71(c). Gantt v. State, 263 Ga. App. 102, 587 S.E.2d 255 (2003). Cited in Wehunt v. State, 168 Ga. App. 353, 309 S.E.2d 143 (1983); Mash v. State, 503 General Consideration (Cont’d) 168 Ga. App. 491, 309 S.E.2d 673 (1983); Daniel v. State, 169 Ga. App. 722, 314 S.E.2d 737 (1984); Fuller v. State, 169 Ga. App. 468, 313 S.E.2d 745 (1984); Russell v. State, 174 Ga. App. 1, 329 S.E.2d 168 (1985); King v. State, 176 Ga. App. 137, 335 S.E.2d 439 (1985); Weaver v. State, 179 Ga. App. 641, 347 S.E.2d 295 (1986); Miller v. State, 179 Ga. App. 217, 345 S.E.2d 909 (1986); State v. Horne, 181 Ga. App. 207, 351 S.E.2d 730 (1986); State v. Military Circle Pet Ctr. No. 94, Inc., 257 Ga. 388, 360 S.E.2d 248 (1987); Robinson v. State, 182 Ga. App. 423, 356 S.E.2d 55 (1987); Abelman v. State, 185 Ga. App. 278, 363 S.E.2d 764 (1987); Gibson v. State, 187 Ga. App. 769, 371 S.E.2d 413 (1988); Manley v. State, 187 Ga. App. 773, 371 S.E.2d 438 (1988); Ward v. State, 188 Ga. App. 372, 373 S.E.2d 65 (1988); Burks v. State, 195 Ga. App. 516, 394 S.E.2d 136 (1990); Martin v. State, 195 Ga. App. 548, 394 S.E.2d 551 (1990); Dixon v. State, 196 Ga. App. 15, 395 S.E.2d 577 (1990); State v. Scoggins, 196 Ga. App. 781, 397 S.E.2d 50 (1990); Reed v. State, 205 Ga. App. 209, 422 S.E.2d 15 (1992); State v. Rustin, 208 Ga. App. 431, 430 S.E.2d 765 (1993); Morgan v. State, 212 Ga. App. 394, 442 S.E.2d 257 (1994); Hassell v. State, 212 Ga. App. 432, 442 S.E.2d 261 (1994); Sanderson v. State, 217 Ga. App. 51, 456 S.E.2d 667 (1995); Wade v. State, 223 Ga. App. 222, 477 S.E.2d 328 (1996); Smith v. State, 239 Ga. App. 515, 521 S.E.2d 450 (1999); Wrigley v. State, 248 Ga. App. 387, 546 S.E.2d 794 (2001); Brown v. State, 246 Ga. App. 517, 541 S.E.2d 112 (2000); Beaman v. City of Peachtree City, 256 Ga. App. 62, 567 S.E.2d 715 (2002); Kall v. State, 257 Ga. App. 527, 571 S.E.2d 520 (2002); Allman v. State, 258 Ga. App. 792, 575 S.E.2d 710 (2002); Martinez v. State, 322 Ga. App. 63, 743 S.E.2d 621 (2013). Amendment Amendment of accusation. — In a prosecution for driving under the influence of alcohol, the state was entitled, under O.C.G.A. § 17-7-71 (f ), to amend the accusation after the defendant entered the defendant’s plea but before jury selection commenced in order to charge 17-7-71 the correct date of the offense. Melton v. State, 174 Ga. App. 461, 330 S.E.2d 398 (1985). Trial court did not err in denying the motion for a continuance when no showing was made to suggest that the defendant’s ability to present a defense was in any way impeded by a change of the date of the alleged offense by one day. Melton v. State, 174 Ga. App. 461, 330 S.E.2d 398 (1985). Trial court did not err in refusing to dismiss uniform traffic citations issued within two years of the date the offenses occurred, but later amended by the state, on the ground that the statute of limitation expired; the amended accusations did not constitute the commencement of a new prosecution and there had been no final disposition of the previously filed accusations. Prindle v. State, 240 Ga. App. 461, 523 S.E.2d 44 (1999). Defendant could not complain that the defendant was required to answer to a charge that had been amended from the original charge filed against the defendant as the defendant was notified of the change, defendant was given a continuance to prepare for the amended charge, the amended charge arose out of the same conduct as the original charge, the defendant did not object but acquiesced in going forward on the amended accusation with the jury that had been impaneled, and the defendant’s earlier jury trial had not started because the jury had been impaneled, but had not been sworn. Lunsford v. State, 262 Ga. App. 635, 585 S.E.2d 923 (2003). Pretrial amendment of an accusation did not start a new prosecution, the previous arraignment of the defendant was sufficient, and jeopardy attached before the nolle prosequi was entered over the defendant’s objection; consequently, a later prosecution of the offenses charged in the accusation was barred by former jeopardy. Smith v. State, 279 Ga. 396, 614 S.E.2d 79 (2005). Because the state amended the state’s accusation against the defendant before trial to include an additional charge of disorderly conduct, in violation of O.C.G.A. § 16-11-39, O.C.G.A. § 17-7-71(f ) required the trial court to 504 grant the defendant’s request for a continuance, and erred when the court failed to do so; moreover, the defendant had no pretrial notice of the need to defend against a tumultuous act that did not physically harm the spouse. Martin v. State, 278 Ga. App. 465, 629 S.E.2d 134 (2006). Amendment of an accusation to clarify that the defendant made contact with the victim’s breast, as opposed to the victim’s ‘‘intimate body parts’’, was timely under O.C.G.A. § 17-7-71(f ) when the state filed the amendment several days before trial, the amendment was served on defense counsel, and the trial court read the amended accusation in open court before trial commenced. Furthermore, the defendant was not surprised by the amendment, and the defendant did not show that the amendment impeded the defendant’s ability to present a defense. Romo v. State, 288 Ga. App. 237, 653 S.E.2d 832 (2007). When the defendant was prosecuted for serving alcohol to a minor, under O.C.G.A. § 3-3-23(a)(1), the defendant did not show the accusation was improperly amended in violation of O.C.G.A. § 17-7-71(f ) because: (1) it was not shown that the accusation was amended after trial commenced; and (2) while it was unknown if the amended accusation was served on the defendant, the amendment, deleting the name of an undercover officer to whom alcohol was allegedly served, did not surprise the defendant, given extensive testimony that had been given about the undercover operation resulting in the charge against the defendant. Butler v. State, 298 Ga. App. 129, 679 S.E.2d 361 (2009). State was not barred from filing a formal accusation charging new violations even though the defendant was issued Uniform Traffic Citations (UTCs) at a traffic stop following a collision because the 17-7-71 differences between the charges made in the UTCs and the charges set forth in the accusation did not affect the accusation’s validity. Sevostiyanova v. State, 313 Ga. App. 729, 722 S.E.2d 333, cert. denied, No. S12C0968, 2012 Ga. LEXIS 612 (Ga. 2012). Amendment to correct typographical error. — Even if the correction of a typographical error in the original accusation was considered an amendment, such a change was authorized by O.C.G.A. § 17-7-71. Anderson v.