In September 2005, a DeKalb County jury convicted Kareem Martin of disorderly conduct, OCGA § 16-11-39 a 1. He appeals from the denial of his motion for new trial, contending the trial court violated OCGA § 17-7-71 f when it denied his request for a continuance. As explained below, Martin was entitled to a continuance as a matter of law. Therefore, the court’s judgment of conviction is reversed and Martin is entitled to a new trial on the disorderly conduct charge. In May 2005, the State filed an accusation that charged Martin with two counts of family violence battery for choking and biting his wife, and two counts of simple battery for grabbing his wife and putting her in a “head lock.” Two months later, and less than ten minutes before the August 29, 2005 trial, the State amended its accusation to add three counts of family violence battery and five counts of battery, each of which charged Martin with either choking, biting, striking, or causing visible bodily harm to his wife. In addition, the amended accusation added a thirteenth count charging Martin with disorderly conduct “by acting in a tumultuous manner toward his wife, whereby she was placed in reasonable fear of her safety, in violation of OCGA § 16-11-39 a 1.” Upon learning of the amendment to the accusation, Martin’s counsel immediately requested a continuance pursuant to OCGA § 17-7-71 f, contending that he was unprepared to defend against the nine additional counts. The court refused to grant a continuance. The jury subsequently convicted Martin of disorderly conduct while acquitting him of the remaining charges.
On appeal, Martin contends that, because the State amended the accusation before trial to include “additional charges,” OCGA § 17-7-71 f required the trial court to grant Martin’s request for a continuance. Specifically, Martin argues that the disorderly conduct charge is an “additional charge” in the amended accusation because it is a different crime that involves different elements than the crimes charged in the original accusation, simple battery and family violence battery.
