2020 Georgia Code
Title 17 - Criminal Procedure
Chapter 7 - Pretrial Proceedings
Article 6 - Demurrers, Motions, and Special Pleas and Exceptions
Part 1 - General Provisions
§ 17-7-110. Time for Filing Pretrial Motions

All pretrial motions, including demurrers and special pleas, shall be filed within ten days after the date of arraignment, unless the time for filing is extended by the court.

(Code 1981, §17-7-110, enacted by Ga. L. 2003, p. 154, § 2.)

- This Code section formerly pertained to copy of indictment or accusation to be furnished. The former Code section was based on Laws 1833, Cobb's 1851 Digest, p. 834; Code 1863, §§ 4522, 4523; Code 1868, §§ 4541, 4542; Code 1873, §§ 4634, 4635; Code 1882, §§ 4634, 4635; Penal Code 1895, § 945; Penal Code 1910, § 970; Code 1933, § 27-1403; Ga. L. 1966, p. 430, § 3; Ga. L. 1983, p. 503, § 2 and was repealed by Ga. L. 1994, p. 1895, § 1, effective January 1, 1995.

- For note and comment, "Hope for the Best and Prepare for the Worst: The Capital Defender's Guide to Reciprocal Discovery in the Sentencing Phase of Georgia Death Penalty Trials," see 23 Ga. St. U.L. Rev. 995 (2007).

JUDICIAL DECISIONS

Construction of ten day period.

- While there may be a constitutional or other right to make a certain motion after the time period set forth in O.C.G.A. § 17-7-110, that does not mean ruling that a motion filed within the time period set forth in § 17-7-110 is untimely; under the plain language of the statute, any pretrial motion will be considered timely if made before ten days after the date of the arraignment, and some motions may be cognizable after that time, but determining the timeliness of such must rest upon other authority. State v. Dempsey, 290 Ga. 763, 727 S.E.2d 670 (2012).

O.C.G.A. § 17-7-110 provides that all pretrial motions, including demurrers and special pleas, shall be filed within ten days after the date of arraignment, unless the time for filing is extended by the court. The failure to file a timely special demurrer seeking additional information constitutes a waiver of the right to be tried on a perfect indictment. Strickland v. State, 349 Ga. App. 673, 824 S.E.2d 555 (2019).

- Trial court did not err in refusing to consider the defendant's motion to suppress because the motion was untimely, the defendant failed to hire private counsel as was indicated and, even after court-appointed counsel was provided, the defendant failed to seek leave to file a motion for an extension after the ten day filing period. Taylor v. State, 326 Ga. App. 27, 755 S.E.2d 839 (2014).

Trial court did not err in refusing to hear the defendant's motion to suppress on the ground that the motion was untimely because the defendant failed to move for and obtain an extension of time; the defendant's proffered amendment of the motion to suppress, which was tendered more than one month after the defendant waived arraignment, was untimely; and, although the defendant had the benefit of testimony from the state's witnesses regarding the issues in the case at the probation revocation hearing in July 2010, the defendant failed to take timely advantage of the opportunity to challenge the traffic stop. Gonzalez v. State, 334 Ga. App. 706, 780 S.E.2d 383 (2015).

- Because the defendant did not file a timely motion to suppress any physical evidence in the case, the defendant waived any right to claim that the underlying search which produced the physical evidence was unconstitutional; thus, the defendant was not entitled to exclusion of testimony describing the physical evidence on the basis that the testimony was the fruit of an unconstitutional search. Riley v. State, Ga. App. , S.E.2d (July 21, 2020).

- Defendant's motion to quash an indictment and a subsequent motion to quash a failure to register as a sex offender count under former O.C.G.A. § 42-1-12 were properly denied as whether the rule on the timing of a motion to quash had been changed by O.C.G.A. § 17-7-110 was not reached because the trial court also properly denied the motion on the merits; the defendant waived the right to challenge the form of the failure to register count of the indictment because the defendant's motion was not made before entry of a not guilty plea and even if § 17-7-110 applied to the filing of the defendant's motion, it was untimely under that statute. Bryson v. State, 282 Ga. App. 36, 638 S.E.2d 181 (2006).

- Trial court erred in denying the defendant's motion to quash an indictment because the motion was filed before the statutory deadline contained in O.C.G.A. § 17-7-110; no arraignment occurred when the defendant filed the motion. State v. Dempsey, 290 Ga. 763, 727 S.E.2d 670 (2012).

- Trial court properly denied the defendant's oral motion in arrest of judgment or motion to dismiss or general demurrer, made after the jury was sworn but before the trial began, as while the nolle pros of the coindictee could have been drawn more explicitly, considering it in context and in light of a subsequent indictment, which only contained one count against the coindictee, there was no intent shown that the charges against defendant required reindictment. Atkins v. State, 291 Ga. App. 863, 663 S.E.2d 286 (2008).

- State waived the state's claim that the defendant's motion to suppress, filed two months after arraignment, was untimely as the state failed to raise the issue or object to the motion on that basis before the trial court; moreover, the state's failure to object was particularly significant in light of the express provision in O.C.G.A. § 17-7-110 allowing the trial court to extend the time for filing. Hicks v. State, 287 Ga. App. 105, 650 S.E.2d 767 (2007).

- Trial court did not abuse the court's discretion by denying the defendant's motion to file untimely pre-trial motions because it was within the court's discretion to refuse to consider the motion since the defendant failed to use reasonable diligence to obtain counsel prior to the arraignment. Preston v. State, 327 Ga. App. 556, 760 S.E.2d 176 (2014).

- Defendant's special demurrers to an indictment charging the defendant with 24 counts of sexual exploitation of children were improperly dismissed as untimely under O.C.G.A. § 17-7-110 because the plain language of a 2003 amendment allowed special demurrers to be filed within ten days of arraignment as the defendant had done; the court of appeals improperly interpreted case law decided after the statute's effective date as the defendants in those cases had been convicted and arraigned prior to the effective date of the statute. Palmer v. State, 282 Ga. 466, 651 S.E.2d 86 (2007).

Accusation was not fatally defective because the accusation informed the defendants of the charges against the defendants and protected the defendants against another prosecution for the same offense, and the defendants could not admit that the defendants passed in an area defined by markings as a no-passing zone without being guilty of the crime charged. Moreover, to the extent that the defendants' attack on the accusation could be read as a special demurrer, seeking greater specificity, the attack was waived by the defendants' failure to raise the issue within ten days after the defendants pled to the accusation. Haynes-Turner v. State, 289 Ga. App. 652, 658 S.E.2d 203 (2008).

Because the defendant argued that the accusation charging the defendant with two traffic violations failed to charge any offense, the trial court did not err in considering the defendant's demurrer on the merits even though the defendant's motion was filed more than ten days after the defendant waived arraignment. State v. Shabazz, 291 Ga. App. 751, 662 S.E.2d 828 (2008).

Defendants' contention that a felony murder indictment was deficient because the indictment did not contain all the essential elements of the underlying crime of aggravated assault was, in essence, a special demurrer seeking greater specificity with regard to the predicate felony. Pursuant to O.C.G.A. § 17-7-110, the defendant's failure to file a timely special demurrer seeking additional information constituted a waiver of the right to be tried on a perfect indictment. Dasher v. State, 285 Ga. 308, 676 S.E.2d 181 (2009).

With regard to a defendant's conviction for rape of a minor relative, the trial court did not err by denying the defendant's motion for a new trial on the ground that the indictments were fatally flawed because the indictments did not specifically allege the required element of force in charging rape because by alleging "unlawful" carnal knowledge during 1992 to 1995, the indictment asserted a charge of forcible rape under the law in effect prior to the 1996 amendment, therefore, the indictment did establish cognizable charges. Additionally, the defendant filed no special demurrers as to the form of the indictment and, thus, waived any argument in that regard. Flournoy v. State, 299 Ga. App. 377, 682 S.E.2d 632 (2009).

Because the defendant did not file a timely special demurrer to the indictment or a timely motion in arrest of judgment, the defendant waived any claim that could have been raised via special or general demurrer. Kirt v. State, 309 Ga. App. 227, 709 S.E.2d 840 (2011).

Because the defendant did not file a special demurrer, the defendant waived the right to a special indictment. Bryant v. State, 320 Ga. App. 838, 740 S.E.2d 772 (2013).

No ground exists for dismissing an appeal based on a special demurrer, or for that matter any motion, if the motion was not timely filed in the trial court. Kimbrough v. State, 336 Ga. App. 381, 785 S.E.2d 54 (2016).

Indictment sufficiently alleged possession of a weapon during the commission of certain crimes, O.C.G.A. § 16-11-106, by alleging that the defendant had a handgun during the commission of the crime of aggravated assault; if the defendant sought to know to which of the two aggravated assault counts was referred to, the defendant's motion was a special demurrer and was untimely under O.C.G.A. § 17-7-110. Allen v. State, 300 Ga. 500, 796 S.E.2d 708 (2017).

To the extent that the defendant argued that an indictment should have been more specific as to the timing in which the offenses were committed, such argument amounted to a special demurrer and because the defendant failed to file a special demurrer, the defendant waived the right to perfect the indictment. Miller v. State, 305 Ga. 276, 824 S.E.2d 342 (2019).

- Defendant's motions for a new trial and in arrest of judgment challenging the wording of the indictment charging the defendant with aggravated assault, O.C.G.A. § 16-5-21(a)(2), (3), were properly denied because the defendant could not have admitted the allegations of the indictment without admitting that the defendant was guilty of a crime and, under O.C.G.A. § 17-7-110, having failed to file a timely special demurrer, the defendant waived the right to a perfect indictment. McDaniel v. State, 298 Ga. App. 558, 680 S.E.2d 593 (2009).

- In a prosecution for felony murder and multiple armed robberies, as the defendant did not file a special demurrer seeking greater specificity with regard to the predicate felony, i.e., the name of the armed robbery victim, to the extent the defendant's merger argument alleged insufficiency of the indictment due to the state's failure to specify which armed robbery count was the underlying offense for the felony murder charge, it was waived. Henderson v. State, 285 Ga. 240, 675 S.E.2d 28 (2009).

Defendant waived the defendant's right to be tried under a perfect indictment because the defendant did not file a special demurrer within ten days after the arraignment as required by O.C.G.A. § 17-7-110. Additionally, to the extent the defendant's motion was one in arrest of judgment, the motion was untimely because the motion was not filed in the same term of court as the judgment as required by O.C.G.A. § 17-9-61. Thompson v. State, 286 Ga. 889, 692 S.E.2d 379 (2010), overruled on other grounds, State v. Kelly, 290 Ga. 29, 718 S.E.2d 232 (2011).

Because the defendant failed to raise a challenge to the indictment in a timely written special demurrer, the challenge was waived. State v. Wilson, 318 Ga. App. 88, 732 S.E.2d 330 (2012).

Trial court did not err by finding that the defendant waived the defendant's right to challenge the indictment charging the defendant with reckless driving because the defendant failed to timely file a written special demurrer. Lauderback v. State, 320 Ga. App. 649, 740 S.E.2d 377 (2013).

- Appellants waived the appellants' challenge to the indictment based on the composition of the grand jury because an elected official served on the grand jury that returned the indictment since the appellants failed to challenge the indictment on the ground that the grand jury was illegally constituted until the appellants filed amended motions for new trial more than seven years after the statutory deadline for such a claim. Bighams v. State, 296 Ga. 267, 765 S.E.2d 917 (2014).

- Statutory demand for a speedy trial pursuant to O.C.G.A. § 17-7-110 was effective when the demand was first filed in a court that was later abolished as that court was a constitutional court with jury jurisdiction and two terms of court; the defendant's demand remained effective following the transfer of the criminal matter to another court. State v. Reid, 298 Ga. App. 235, 679 S.E.2d 802 (2009).

- Criminal attempt to possess cocaine was properly used as the underlying felony for a felony murder conviction because the defendant's plan to rob a cocaine dealer was the proximate cause of the victim's death, and the plan to rob an individual dealing in illegal drugs carried with it a foreseeable risk of danger and death; therefore, counsel was not ineffective in failing to file a demurrer to the indictment within the time provided in O.C.G.A. § 17-7-110. Funck v. State, 296 Ga. 371, 768 S.E.2d 468 (2015).

- Motion for discharge and acquittal based on the constitutional speedy trial right, and a renewal of that motion, were timely filed by the defendant when both motions were filed prior to the time of trial; the time limitations under O.C.G.A. § 17-7-110 were not applicable. State v. Reid, 298 Ga. App. 235, 679 S.E.2d 802 (2009).

Cited in Dingler v. State, 281 Ga. App. 721, 637 S.E.2d 120 (2006); Langlands v. State, 282 Ga. 103, 646 S.E.2d 253 (2007); Roberts v. State, 282 Ga. 548, 651 S.E.2d 689 (2007); Boatright v. State, 308 Ga. App. 266, 707 S.E.2d 158 (2011); State v. Mojica, 316 Ga. App. 619, 730 S.E.2d 94 (2012); Brown v. State, 322 Ga. App. 446, 745 S.E.2d 699 (2013); Smith v. State, 338 Ga. App. 635, 791 S.E.2d 418 (2016); Bullard v. State, 307 Ga. 482, 837 S.E.2d 348 (2019).