We granted Abe Lee Buice’s petition for writ of certiorari to consider whether a trial court may vacate an order of nolle prosequi and permit the State to try the defendant on the nol prossed indictment without seeking a new indictment from the grand jury. For the reasons set forth, we affirm the Court of Appeals. Buice v. State, 239 Ga. App. 52 1 520 SE2d 258 1999.
The record in this case reveals that Buice was indicted in 1994 by a Spalding County grand jury and charged with two counts of child molestation. In 1996 Buice was reindicted on similar charges under a second bill of indictment. Both indictments were on the trial calender in February 1997. On February 20, 1997, shortly before the case was set to be tried, the State received the trial court’s consent to nolle prosequi the 1994 indictment. Four days later when the case was called for trial, however, the State requested that the trial court vacate the nolle prosequi because the wrong indictment had been tendered and that it was the 1996 indictment, not the 1994 indictment, the State had intended to have nol prossed. The trial transcript reveals that Buice’s counsel acknowledged she had received both indictments and knew both were on the trial calendar. Defense counsel objected to the State’s request to vacate the nolle prosequi for the 1994 indictment, asserting that different dates were set forth in the two indictments regarding when the molestations had occurred and that Buice had an alibi for the 1996 indictment, although Buice had not given the State notice of any alibi claim as required by OCGA § 17-16-5 a.1 The trial court granted the State’s request and entered an order rescinding the nolle prosequi order and returning the case based on the1994 indictment to active status. The trial court’s order specifically found that “the nolle prosequi order was requested in error.” Buice was then tried that day and convicted on the 1994 indictment. Several weeks later, a nolle prosequi was filed for the 1996 indictment because Buice had been tried and found guilty on the 1994 indictment.
