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Howard v. State

An indictment for a compound crime which does not adequately set forth one of the predicate crimes is not fatally defective where defendant was separately charged with the predicate crime and the separate charge contained all of the elements of that offense.

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John Russell Howard pled guilty to homicide by vehicle, OCGA § 40-8-393 a, and was sentenced to serve fifteen years in prison. His guilty plea to additional counts of reckless driving, OCGA § 32-6-23; exceeding allowed width of vehicles and loads, OCGA § 32-6-23; and failure to obtain a permit, OCGA § 32-6-20; 32-6-26; 32-6-28; merged into the vehicular homicide count. Following the denial of his motion for new trial, Howard appeals, contending the indictment was fatally defective in failing to charge him with a crime against the laws of Georgia. For the reasons which follow, we affirm.

1. Initially, we address the State’s argument that Howard may not raise his challenge to the indictment in this direct appeal but may only raise it in a separate habeas corpus proceeding. Ordinarily, “a motion for new trial is not the proper method to attack the sufficiency of an indictment and does not provide a basis for this Court to review the indictment.” McKay v. State, 234 Ga. App. 556, 559 2 507 SE2d 484 1998. See also Abreu v. State, 206 Ga. App. 361, 363 2 425 SE2d 331 1992.

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