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Kenerly v. State

The trial court did not lose jurisdiction to accept the return of a second indictment while the appeal of the first indictment was pending.

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We granted Kevin Kenerly’s application for interlocutory review of the trial court’s order denying his motion to quash a second indictment issued against him on the same charges asserted in an earlier indictment. Kenerly asserts that a pending appeal of the first indictment deprived the trial court of jurisdiction to accept return of the second indictment. He also contests the trial court’s denial of his plea in bar based on the expiration of the statutes of limitation. For the reasons that follow, we affirm.

Kenerly, a former member of the Gwinnett County Board of Commissioners “BOC”, was first indicted on October 11, 2010. On October 22, 2010, the trial court denied Kenerly’s objection challenging the jurisdiction and authority of a Gwinnett County special purpose grand jury to return an indictment against him. On November 19, 2010, Kenerly filed a Notice of Appeal from the trial court’s October 22, 2010 order. On July 6, 2011, this court reversed the trial court’s October 22, 2010 order, and held that a special purpose grand jury is not authorized to return a criminal indictment.1 The state filed a motion for reconsideration, which this court denied on July 27, 2011. On August 1, 2011, the state filed in this court a Notice of Intent to Apply for Certiorari “NOI”. On August 11, 2011, the state filed in the Supreme Court of Georgia a Petition for Writ of Certiorari; the Supreme Court on March 5, 2012 denied the petition and issued its remittitur. This court issued its remittitur on March 21, 2012.

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