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Shane v. State

The trial court did not abuse its discretion in deferring ruling on the defendant's motion to quash the indictment until the State submitted its nolle prosequi order.

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James Edward Shane appeals the trial court’s grant of an entry of nolle prosequi, arguing that the trial court erred in failing to grant his motion to quash the indictment against him instead. Because we find no abuse of discretion, we affirm.

Shane was indicted on four counts of aggravated child molestation and two counts of child molestation. The indictment alleged that he committed the criminal acts between June 1, 2010 and May 25, 2011, and Shane moved to quash it, arguing that the State was capable of narrowing the date range but had made no effort to do so. At a hearing on the motion to quash, the State conceded that Shane had been incarcerated for several months during this time period and stated that a grand jury had reindicted Shane that morning with a narrower date range. The State asked the court not to rule immediately on the motion to quash and allow it instead to present a nolle prosequi that afternoon or the next day, so that Shane would not be released from bond. The State also noted that if the court quashed the indictment and a problem arose to cause the second indictment also to be quashed, the State would be unable to reindict Shane. Later that day, the trial court consented to the entry of nolle prosequi “based on the language of Layman v. State, 280 Ga. 794 631 SE2d 107 2006 since there is no allegation or evidence of abuse by the State.”

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