Judgment affirmed. McMurray, P. J., and Smith, J., concur.

Paul L. Howard, Jr., Solicitor, Deborah Espy, Ingrid D. Hartman, Cynthia Strong-McCarthy, Assistant Solicitors, for appellee.

OCGA 45-11-4 provides that if a public official is indicted for misconduct in office, he is entitled to certain privileges not afforded other defendants: he must be notified of the charges the grand jury is considering; he must have the opportunity to be present for the presentation to the grand jury of evidence against him; and he must have the opportunity to make a sworn statement to the grand jury. [1] However, a defendant in a misdemeanor case may be tried upon an accusation framed and signed by the prosecuting attorney rather than an indictment. OCGA 17-7-71. And where criminal proceedings are brought in state court, the accused is not entitled to be indicted by a grand jury. OCGA 15-7-46. The language of OCGA 45-11-4 only expressly requires that the specified privileges be granted officials who are indicted; but because that provision was first enacted in 1833, long before the legislature enacted the Code sections allowing misdemeanors to be charged by a prosecutor's accusation rather than a grand jury's indictment, it is arguable that the legislature intended that these privileges be granted any official charged with any misconduct.

Nonetheless, we must reject this argument. When the legislature adopted OCGA 17-7-70.1, allowing district attorneys to proceed by accusation rather than indictment in certain felony cases, it explicitly excepted charges against public officials, stating in subsection (e) that those officials would retain their rights under OCGA 45-11-4. Yet when the legislature enacted OCGA 17-7-71 and 15-7-46, allowing prosecutors to charge misdemeanors by accusation and to proceed in state court without a grand jury's indictment, it did not make an exception for charges against public officials.

Statutes should be harmonized whenever possible. Weldon v. Bd. of Commrs. of Monroe County, 212 Ga. App. 885 (2) (443 SE2d 513) (1994). In this case, we harmonize the statutes by concluding that OCGA 45-11-4 says that if a public official is indicted for alleged misconduct, he is entitled to certain rights; it does not say that a public official charged with misconduct must be indicted, or that he is entitled to those rights if he is not. Accordingly, the trial court properly concluded that a police officer may be charged with a misdemeanor by accusation in state court.

1995

Notes:

1. Pursuant to OCGA 17-7-52, peace officers are entitled to the rights granted public officials under OCGA 45-11-4.