Rader v. State

703 S.E.2d 12, 306 Ga. App. 316, 2010 Fulton County D. Rep. 3313, 2010 Ga. App. LEXIS 934

Opinion

PHIPPS, Presiding Judge.

In Rader v. State, 1 we affirmed the trial court’s denial of the Appellants’ motions to dismiss the indictments against them. We also vacated a portion of the trial court’s order concerning statute of limitation defenses asserted by the Appellants in pleas in bar, and we remanded the case to the tried court for further proceedings thereon. 2

Subsequently, the Supreme Court of Georgia issued an opinion in a related civil case, Levenson v. Word, 3 that arose from the same set of circumstances that gave rise to these criminal cases. Then, in Cooke v. State and Rader v. State, 4 the Supreme Court of Georgia granted Appellants’ petitions for certiorari in these cases and remanded the cases to this Court in an order that stated:

Decided October 5, 2010. Cook, Noell, Tolley & Bates, Edward D. Tolley, Ronald E. Houser, for appellant (case no. A09A1552). Brian Steel, Frank C. Winn, for appellant (case no. A09A1553). David McDade, District Attorney, J. Brown Moseley, Assistant District Attorney, for appellee.

It appearing that the Court of Appeals erred in affirming the trial court’s denial of [Appellants’] motions to dismiss the indictments against them based on this Court’s holding in Levenson v. Word,[ 5 ] these petitions for certiorari hereby are granted and the cases are remanded to the Court of Appeals for proceedings not inconsistent with this order. 6

We read the Supreme Court of Georgia’s order in Cooke to provide that its holding in Levenson requires a reversal of the trial court’s denial of the motions to dismiss the indictments.

Accordingly, our opinion in these cases is vacated, and we reverse the trial court’s denial of the Appellants’ motions to dismiss the indictments against them. In light of this reversal, the cases do not require further proceedings in the trial court.

Judgments reversed.

Smith, P. J., and Senior Appellate Judge Marion T Pope, Jr., concur.

1 300 Ga. App. 411 (685 SE2d 405) (2009).

2 Id. at 418 (6).

3 286 Ga. 114 (686 SE2d 236) (2009).

4 Certiorari granted and remanded to the Court of Appeals by order March 1, 2010.

5 Supra.

6 Cooke, supra.