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Lunsford v. State

The state had the right to amend defendant's accusation before the jury was sworn and the trial court properly granted defendant's motion for a reasonable continuance.

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A McIntosh County jury found Daniel Hugh Lunsford guilty of violating the provisions of a probationary license issued to an habitual violator, DUI —less safe driver, and failure to maintain a lane, which charges arose pursuant to an incident wherein Lunsford made a left turn in front of another vehicle traveling on North Way in Darien. He appeals and claims in his sole enumeration of error that, following jury selection, the trial court erred in permitting the State to amend the accusation in order to alter the substantive offense named in Count 1. This contention is meritless, and we affirm. Count 1 in the original accusation charged Lunsford with driving after being declared an habitual violator and without having obtained a driver’s license. Following jury selection, Lunsford’s attorney informed the trial court of a possible fatal variance in the charging instrument, since, at the time of the incident, Lunsford was in possession of a valid probationary driver’s license issued to him during his term as an habitual violator.

Thereafter, the State announced its intention to amend Count 1 of the accusation to charge Lunsford with violating the terms of his habitual violator probationary license by DUI —less safe driver. The trial court then raised the issue that a jury had been selected but not sworn, and asked, “What are your respective positions with regard to this jury” Lunsford’s sole contention was that, because the State was going to “recast or redraw this accusation to more fully reflect what happened here, that gives us a new set of facts, a new set of circumstances, a new set of allegations to deal with. And, frankly, we need some time to do that.”

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