Tommy Lee Smith appeals the trial court’s denial of his plea of former jeopardy and motion to dismiss. For reasons that follow, we affirm.
“The appellate standard of review of [the] grant or denial of a double jeopardy plea ... is whether, after reviewing the trial court’s oral and written rulings as a whole, the trial court’s findings support its conclusion.”1 Viewed in this manner, the record shows that Smith was originally indicted for obstruction, theft by shoplifting, and four counts of theft by receiving. The State later filed an amended accusation setting forth the same counts. The parties do not dispute that Smith was arraigned on the original accusation, but was not arraigned on the amended accusation. The parties also do not dispute that on March 13, 2003, the case went to trial on the amended accusation, and a jury was impaneled and sworn. After several witnesses testified, the parties realized that Smith had never been *232arraigned on the amended accusation, and Smith moved for a mistrial. Over Smith’s objection, the trial court granted the State’s motion to enter a nolle prosequi as to the original and amended accusations, and dismissed the jury. A grand jury subsequently returned an indictment against Smith on the same charges.
Smith filed a plea of former jeopardy and motion to dismiss, arguing that he had been placed in jeopardy as to the charges faced during the March 13 trial and that further prosecution was thus barred. The trial court, citing Bryans v. State of Ga.2 and Hardwick v. State,3 found as a matter of law that even though a jury had been impaneled and sworn, double jeopardy did not attach because Smith had not been arraigned as to the amended accusation. Accordingly, the court denied Smith’s motion.
Smith appeals, arguing that the trial court, in violation of OCGA § 17-8-3, erred in allowing the State to nolle prosequi the case without the consent of Smith after the case had been submitted to the jury.4 Smith also argues that this case is distinguishable from those cited by the trial court because here Smith had in fact been arraigned on the original accusation, and the proper remedy was thus to nolle prosequi the amended accusation and proceed with a new trial on the original accusation. The State, on the other hand, argues that, under Bryans, jeopardy did not attach, and, accordingly, the trial court did not err in entering a nolle prosequi without the consent of the accused. We agree with the State for several reasons.
First, Smith does not argue on appeal that the amended accusation merely constituted a nonsubstantive change to the original accusation, and that the issue was thus joined upon arraignment on the original. Indeed, by refusing to waive arraignment as to the amended accusation and then moving for a mistrial, Smith took the position at trial that the amended accusation was in fact a superseding charging instrument. Accordingly, we do not address the issue of whether the cases relied upon by the trial court could be distinguished because they involve a reindictment rather than a nonsubstantive amendment. We simply note that under the facts of this case, Smith treated the amended accusation as a superseding charging instrument, and that he cannot now profit from an error that he induced.5 And as we have previously noted:
*233[a] defendant is placed in jeopardy when, in a court of competent jurisdiction with a sufficient indictment, he has been arraigned, has pled and a jury had been impaneled and sworn. The pendency of a prior indictment for the same offense based on the same facts for which the defendant may have been arraigned on and entered a plea of not guilty does not place a defendant in jeopardy, and he does not face a repeated prosecution simply because he is tried on a subsequent indictment. . . . Whenever he has been acquitted or convicted upon any one of them, [only then] he can plead such acquittal or conviction in bar of a prosecution of any of the others.6
In the present case, it is undisputed that the defendant was not arraigned on the amended accusation, that he refused to waive arraignment, and that he treated the amended accusation as a superseding charging instrument. “Jeopardy not having attached, the entry [of nolle prosequi] without consent of [the] defendant was not error.”7 Accordingly, we affirm the trial court’s denial of the defendant’s motion.
Judgment affirmed.
Andrews, P. J., Johnson, P. J., and Ellington, J., concur. Eldridge, Miller and Adams, JJ., dissent.(Punctuation omitted.) Simile v. State, 259 Ga. App. 106, 107 (576 SE2d 83) (2003).
34 Ga. 323 (1866).
231 Ga. 181 (200 SE2d 728) (1973).
See OCGA§ 17-8-3 (“After the case has been submitted to a jury, a nolle prosequi shall not be entered except by the consent of the defendant.”).
See Murray v. State, 256 Ga. App. 736 (569 SE2d 636) (2002).
(Punctuation omitted.) Hubbard v. State, 225 Ga. App. 154, 155-156 (483 SE2d 115) (1997).
(Citations omitted.) McIntyre v. State, 189 Ga. App. 764, 765 (377 SE2d 532) (1989).