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Court of Appeals of Georgia.



Decided: January 11, 2018

Russell Knighton Walker, for Appellant. Marie R. Banks, Asst. Dist. Atty., George Herbert Hartwig III, Dist. Atty., for Appellee.

In Jackson v. State, 335 Ga. App. 597, 782 S.E.2d 499 (2016), this Court (1) held that the trial court properly denied Prentiss Ashon Jackson’s general demurrer; and (2) affirmed Jackson’s conviction because it was supported by the evidence. In Jackson v. State, 301 Ga. 137, 800 S.E.2d 356 (2017), the Supreme Court of Georgia reversed this Court’s decision and found that the indictment was not sufficient to withstand a general demurrer and was therefore void. Accordingly, we vacate the prior decision, and the judgment of the Supreme Court is made the judgment of this Court.

Moreover, we recognize

[t]he general rule is that retrial of the defendant is not barred where reversal of the conviction results from trial error rather than evidentiary insufficiency. Williams v. State, 258 Ga. 305, 311, 369 S.E.2d 232 (1988). Reversal based upon a faulty or flawed indictment is a reversal based upon “trial error.” Burks v. United States, 437 U.S. 1, 13-14 [98 S.Ct. 2141, 57 L.Ed.2d 1] (1978).

Samuel v. State, 190 Ga. App. 539, 540 (1), 379 S.E.2d 571 (1989). The Supreme Court’s ruling solely addressed the sufficiency of the indictment, which is void. Since the Court did not reach the issue of evidentiary sufficiency, double jeopardy does not bar retrial in this case.

Judgment reversed.

Miller, Presiding Judge.

Andrews and Branch, JJ., concur.

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Docket No: A15A1855

Decided: January 11, 2018

Court: Court of Appeals of Georgia.

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