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Martinez v. State

The defendant's aggravated assault conviction was void for lack of jurisdiction because his verbal waiver of his right to a grand jury indictment was insufficient to satisfy O.C.G.A. § 17-7-70 subsection a's requirement of a written waiver before the State can proceed by accusation.

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Following his conviction of aggravated assault OCGA § 16-5-21 a 2, simple battery OCGA § 16-5-23 a 1, and hindering an officer OCGA § 16-10-24 a, Geraldo Martinez appeals from the denial of his motion for new trial. Martinez contends that the trial court erred in accepting his improper waiver of his right to Grand Jury presentment and an indictment perfect in form; trial counsel was ineffective in failing to ensure a proper waiver; and the evidence was insufficient to support his conviction for hindering an officer. For the reasons that follow, we reverse in part and affirm in part.

Viewed in the light most favorable to the verdict,1 the evidence shows that the victim knew Martinez and had hung out with him a few times. On October 2, 2008, the victim went over to Martinez’s house in Gordon County around 7:00 p.m. Around 8:00 p.m. Martinez and the victim walked to a liquor store to buy some beer and wine. While the victim was paying for his items at the store, Martinez noticed that the victim had about $900 in cash. After completing their purchase, Martinez and the victim went back to Martinez’s house.

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