(Code 1933, § 26-506, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1982, p. 3, § 16.)
Cross references.- Multiple jeopardy, U.S. Const., amend. 5 and Ga. Const. 1983, Art. I, Sec. I, Para. XVIII.
Fraud generally, § 16-9-50 et seq.
Law reviews.- For survey article citing developments in Georgia criminal law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 95 (1981). For annual survey of criminal law, see 38 Mercer L. Rev. 129 (1986). For annual survey on criminal law and procedure, see 42 Mercer L. Rev. 141 (1990). For note discussing organized crime in Georgia with respect to the application of state gambling laws, and suggesting proposals for combatting organized crime, see 7 Ga. St. B. J. 124 (1970). For comment, "Grady v. Corbin: An Unsuccessful Effort to Define Same Offense," see 25 Ga. L. Rev. 143 (1990).
JUDICIAL DECISIONSANALYSIS
Statute proscribes multiple convictions and successive prosecutions for same conduct. Brock v. State, 146 Ga. App. 78, 245 S.E.2d 442 (1978).
O.C.G.A. § 16-1-7 constitutes Georgia's statutory bar to successive prosecutions, the procedural aspect of double jeopardy. Mann v. State, 160 Ga. App. 527, 287 S.E.2d 325 (1981).
The state is required to prosecute all offenses arising out of the same course of conduct at the same time in a single prosecution. Where the state attempts to charge the defendant with all offenses arising out of a vehicular accident involving a death, but the trial judge, finding no allegations in the indictment permitting proof of an exception to the statute of limitations, permits no evidence as to the counts other than the one charging murder, and the state proceeds with a prosecution as to the murder count, any other counts as to vehicular homicide, reckless driving, driving under the influence, and driving off the center lane are barred by procedural double jeopardy. State v. Stowe, 167 Ga. App. 65, 306 S.E.2d 663 (1983).
O.C.G.A. § 16-1-7(a) precludes conviction or punishment for more than one crime if one is included in the other as a matter of law or fact. Teal v. State, 203 Ga. App. 440, 417 S.E.2d 666, cert. denied, 203 Ga. App. 908, 417 S.E.2d 666 (1992).
Under O.C.G.A. §§ 16-1-6 and16-1-7, a defendant may be prosecuted for two crimes based on the same conduct, but defendant may not be convicted of more than one crime if one crime is included in the other. Padgett v. State, 205 Ga. App. 576, 423 S.E.2d 411 (1992).
Although the heading of O.C.G.A. § 16-1-7 relates to multiple prosecutions for the same conduct, it actually proscribes multiple convictions and successive prosecutions for the same conduct. State v. Kennedy, 216 Ga. App. 405, 454 S.E.2d 600 (1995).
An accused may be prosecuted for both rape and child molestation based on the same conduct, but he may not be convicted of both Mackey v. State, 235 Ga. App. 209, 509 S.E.2d 68 (1998).
When defendant was charged with child molestation, incest, interstate interference with custody, and statutory rape, all concerning the same victim, except for one count naming the parents as victims, and defendant pled guilty to interstate interference with custody and statutory rape, with the state requesting a nolle prosequi order on the remaining counts, it was not error to convict defendant of statutory rape and enter a nolle prosequi order as to child molestation and incest on the theory that all charges arose from the same events, because defendant was only convicted of statutory rape and interstate interference with custody, and nothing showed that defendant was improperly convicted of lesser included crimes based on the same conduct under O.C.G.A. § 16-1-7(a)(1). Hernandez v. State, 276 Ga. App. 57, 622 S.E.2d 594 (2005).
Trial court erred in granting the defendant's plea in bar on the ground of procedural double jeopardy because the defendant failed to demonstrate actual knowledge of all the pending charges on the part of the proper prosecuting officer as the defendant did not establish the identity of the prosecuting officer, if any, at the defendant's guilty plea in recorder's court; the trial court's deputy clerk testified that no prosecutor was assigned to the traffic docket on which the defendant's expired tag charge was mistakenly entered; and the defendant did not establish that any prosecuting officer in recorder's court was aware of all the pending charges. State v. Hill, 333 Ga. App. 785, 777 S.E.2d 265 (2015).
Purpose of statute.
- First policy underlying double jeopardy bar is to prevent harassment of accused by successive prosecutions. Marchman v. State, 234 Ga. 40, 215 S.E.2d 467 (1975).
Statute was designed to protect accused against the harassment of multiple prosecutions arising from same conduct. Waites v. State, 238 Ga. 683, 235 S.E.2d 4 (1977).
Effect of conviction.
- Defendant can be convicted on only one of multiple pending indictments; the remaining indictments are to be dismissed following trial on one of the cases on the merits. Geckles v. State, 177 Ga. App. 70, 338 S.E.2d 473 (1985).
When a jury convicted a defendant on an aggravated battery charge, but acquitted defendant on charges of obstruction, simple battery, and aggravated assault and could not reach a verdict on a second charge of aggravated assault, the jury's inability to reach a verdict on the second aggravated assault charge, a lesser included offense, did not invalidate the jury verdict on the aggravated battery charge. Collier v. State, 195 Ga. App. 380, 393 S.E.2d 509 (1990).
Double jeopardy questions controlled by O.C.G.A. §§ 16-1-6,16-1-7, and 16-1-8. - Former 1968 Criminal Code (see now O.C.G.A. T. 16) extends proscription of double jeopardy beyond that provided for in United States and Georgia Constitutions. Therefore, questions of double jeopardy in Georgia must be determined under the proscriptions of former Code 1933, §§ 26-505 through 26-507 (see now O.C.G.A. §§ 16-1-6 through16-1-8). State v. Warren, 133 Ga. App. 793, 213 S.E.2d 53 (1975).
Former 1968 Criminal Code (see now O.C.G.A. T. 16) extends double jeopardy proscription beyond that provided for in United States and Georgia Constitutions. Marchman v. State, 234 Ga. 40, 215 S.E.2d 467 (1975) (see O.C.G.A. T. 16).
Former Code 1933, §§ 26-505 through 26-507 see now O.C.G.A. §§ 16-1-6 through16-1-8) provided an expanded statutory test for determining double jeopardy questions, thereby rendering inapplicable previous Georgia decisions applying only minimum constitutional standards of double jeopardy. Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 667 (1978).
Questions of double jeopardy in Georgia must be determined under the expanded statutory proscriptions found in O.C.G.A. §§ 16-1-6 through16-1-8 which place limitations upon multiple prosecutions, convictions, and punishments for the same criminal conduct. Stone v. State, 166 Ga. App. 245, 304 S.E.2d 94 (1983).
After a defendant engaged in two separate courses of conduct, the attempt to sell marijuana to an undercover police officer and the possession of 12 pounds of marijuana at defendant's home, double jeopardy did not attach to the second prosecution as these acts occurred at different times and locations, with distinct quantities of contraband, even though the defendant might have at some earlier time possessed all the marijuana in defendant's home; thus, the defendant's argument on substantive double jeopardy was rejected. Kinchen v. State, 265 Ga. App. 474, 594 S.E.2d 686 (2004).
Pretrial intervention program on related charges did not bar prosecution.
- Prosecution of the defendants for theft by taking and criminal trespass in Calhoun County, O.C.G.A. §§ 16-7-21(b) and16-8-2, was not prohibited by double jeopardy based on their prior entry into a pretrial intervention program under O.C.G.A. § 15-18-80(b) following charges of theft by receiving stolen property, O.C.G.A. § 16-8-7(a), in Irwin County because there was no prosecution in Irwin County within the meaning of O.C.G.A. §§ 16-1-3(14) and16-1-8(a)(1)-(2). Palmer v. State, 341 Ga. App. 433, 801 S.E.2d 300 (2017).
Jeopardy did not attach because there was no adjudication of guilt.
- Because the defendant's alleged mistake of fact regarding a charge of possession of a firearm by a convicted felon required consideration of facts extrinsic to the accusation to be decided by a jury, the trial court erred in dismissing the charge, sua sponte; moreover, as such dismissal was not an adjudication of guilt, the state could appeal from the same without violating the defendant's double jeopardy rights. State v. Henderson, 283 Ga. App. 111, 640 S.E.2d 686 (2006).
Former Code 1933, §§ 26-505 through 26-507 (see now O.C.G.A. §§ 16-1-6 through16-1-8) distinguish between two aspects of double jeopardy: first, limitations upon multiple prosecutions for crimes arising from same conduct (referred to as procedural bar of double jeopardy); and, second, limitations upon multiple convictions or punishments that may be imposed for such crimes (referred to as substantive bar of double jeopardy). Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 667 (1978).
Procedural aspect of double jeopardy rule.
- Procedural aspect of the double jeopardy rule prohibits multiple prosecutions arising from the same conduct. Teal v. State, 203 Ga. App. 440, 417 S.E.2d 666, cert. denied, 203 Ga. App. 908, 417 S.E.2d 666 (1992).
Trial court properly granted the defendant's plea in bar and plea of former jeopardy in a burglary prosecution as the state improperly terminated the first trial by dismissing the indictment after jeopardy attached without the defendant's consent, and the second burglary prosecution, although alleging a different date, residence, and accomplice, was based on the same material facts as the first indictment. State v. Jackson, 290 Ga. App. 250, 659 S.E.2d 679 (2008).
Statute affords protection broader than defense of double jeopardy.
- Former Code 1933, § 26-506 gave accused some protection from repeated prosecutions in those situations when the defense of double jeopardy was not available and yet accused should not be worn down by multiple prosecutions arising from the same conduct. Johnson v. State, 130 Ga. App. 134, 202 S.E.2d 525 (1973).
Abandonment of statutory double jeopardy protections meant constitutional protections only remained.
- Defendant raised the state constitutional provision and O.C.G.A. §§ 16-1-7 and16-1-8 in the defendant's plea of former jeopardy; however, the defendant expressly abandoned the statutory grounds at the hearing. By choosing that procedure, defendant actually relied upon the minimum constitutional protections against double jeopardy and chose to forego the additional protections provided by Georgia statutory law; thus, the trial court erred in applying Georgia statutory law in the instant case. Garrett v. State, 306 Ga. App. 429, 702 S.E.2d 470 (2010).
Statute superseded by more specific carjacking statute.
- O.C.G.A.16-5-44.1(d) supersedes O.C.G.A. § 16-1-7 in carjacking cases. Campbell v. State, 223 Ga. App. 484, 477 S.E.2d 905 (1996).
Attachment of jeopardy.
- Defendant is placed in jeopardy when, in a court of competent jurisdiction with a sufficient indictment, defendant has been arraigned, has pled, and a jury has been impaneled and sworn. Geckles v. State, 177 Ga. App. 70, 338 S.E.2d 473 (1985).
O.C.G.A. § 16-1-7(b) presupposes that defendant has been subjected to a previous prosecution and a prosecution encompasses more than mere return of an indictment. State v. Daniels, 206 Ga. App. 443, 425 S.E.2d 366 (1992).
Trial court erred in holding that jeopardy had not attached on the previous charges filed against the defendant due to a mistrial because the defendant was placed in jeopardy when the jury was sworn in the first trial. Herrington v. State, 315 Ga. App. 101, 726 S.E.2d 625 (2012).
Pendency of a former indictment for same offense does not provide a ground for a plea of double jeopardy because even if an accused has been arraigned and has entered a plea, the accused is not placed in jeopardy until a jury is impaneled and sworn. Teal v. State, 203 Ga. App. 440, 417 S.E.2d 666, cert. denied, 203 Ga. App. 908, 417 S.E.2d 666 (1992).
Multiple accusations and indictments not barred.
- O.C.G.A. § 16-1-7(b) is a bar to multiple prosecutions, and does not forbid multiple accusations or multiple indictments. Cochran v. State, 176 Ga. App. 58, 335 S.E.2d 165 (1985).
To constitute a "previous prosecution" within the meaning of O.C.G.A. §§ 16-1-7(b) and16-1-8(b), the defendant previously must have been "placed in jeopardy" as to at least one of the offenses arising out of the same conduct as the offense for which the state is subsequently attempting to prosecute defendant. State v. Smith, 185 Ga. App. 694, 365 S.E.2d 846 (1988).
Plea of guilty to an indictment or complaint with its entry on the record and acceptance by the trial judge constitutes jeopardy for purposes of O.C.G.A. §§ 16-1-7(b) and16-1-8(b). State v. Smith, 185 Ga. App. 694, 365 S.E.2d 846 (1988).
Because the crimes alleged in the accusation and indictment involved different victims, locations, and times, and hence did not arise from the same conduct, the trial court did not err in denying the defendant's motion to dismiss the charges in the indictment on double jeopardy grounds based on the defendant's prior plea to the charges in the accusation. Davis v. State, 287 Ga. App. 535, 652 S.E.2d 177 (2007).
Trial court properly rejected the defendant's argument that the state was collaterally estopped from pursuing the robbery charges as the court found that the alleged armed robbery was completed before the vehicle was taken and the defendant presented no evidence that the robbery charges were known to the prosecuting attorney when the earlier prosecution for theft by receiving the vehicle was brought. Holt v. State, 339 Ga. App. 230, 793 S.E.2d 516 (2016).
Multiple convictions and punishments for one crime improper.
- Because no evidence showed that the information concerning the defendant was known to the proper prosecuting officer in Gwinnett County, and because no basis otherwise existed for a charge of conspiracy to traffic based on what officers recovered in the search of the defendant's home, the appeals court refused to state that the defendant could have been convicted of conspiracy to traffic methamphetamine in Gwinnett County, or that Gwinnett County should have charged the defendant with this crime; hence, under these circumstances, the Dawson County indictment was not barred under O.C.G.A. §§ 16-1-6(b)(1) and16-1-7(b). Bradford v. State, 283 Ga. App. 75, 640 S.E.2d 630 (2006).
Appeals court agreed that because there was only one homicide victim, only one life sentence, and not three, could be imposed, because such improperly subjected the defendant to multiple convictions and punishments for one crime. Turner v. State, 281 Ga. 487, 640 S.E.2d 25 (2007).
Trial court erred in imposing a life sentence for each of the two indicted counts of felony murder, to be served concurrently, because the defendant could not be sentenced on two felony murder counts when only one person was killed as that improperly subjected the defendant to multiple convictions and punishments for one crime. Tye v. State, 298 Ga. 474, 782 S.E.2d 10 (2016).
Substantive bar against double jeopardy not waived by guilty plea.
- Right to be free of multiple convictions for the same conduct has been referred to as the substantive bar against double jeopardy, and it is not waived either by the defendant's entry of a guilty plea or by defendant's failure to assert it in the trial court. Redding v. State, 188 Ga. App. 805, 374 S.E.2d 339 (1988).
Waiver of procedural and substantive bar against double jeopardy.
- Although the procedural bar against double jeopardy found in O.C.G.A. § 16-1-8 can be waived by failure to assert it in writing prior to trial, the failure to file a written plea of former jeopardy prior to trial will not defeat an accused's right to be free of multiple convictions, under O.C.G.A. § 16-1-7, for the criminal act. McClure v. State, 179 Ga. App. 245, 345 S.E.2d 922 (1986).
When the defendant had already pled guilty, been sentenced, and completed sentence for certain crimes, an effort to reindict the defendant based on a violation of a plea agreement that the defendant would not seek public office was properly dismissed on the grounds of double jeopardy; the defendant's agreement to submit to such prosecution by waiving bar to prosecution, regardless of the failure to mention double jeopardy, was ineffectual. State v. Barrett, 215 Ga. App. 401, 451 S.E.2d 82 (1994), rev'd on other grounds, 265 Ga. 489, 458 S.E.2d 620 (1995).
Successive municipal and state court prosecutions.
- Georgia's double jeopardy statute is inapplicable to successive municipal and state court prosecutions. State v. Burroughs, 244 Ga. 288, 260 S.E.2d 5 (1979); Parker v. State, 170 Ga. App. 333, 317 S.E.2d 209 (1984); Dickinson v. State, 191 Ga. App. 467, 382 S.E.2d 187 (1989); Puckett v. State, 239 Ga. App. 582, 521 S.E.2d 634 (1999).
O.C.G.A. § 16-1-7(a) does not preclude successive state and municipal prosecutions, only successive prosecutions for state crimes. Fuller v. State, 169 Ga. App. 468, 313 S.E.2d 745 (1984).
Subsequent prosecution of defendant for robbery after defendant pled guilty in traffic court to fleeing to elude did not violate O.C.G.A. § 16-1-7 since there was no evidence that the traffic court solicitor knew about the robbery indictment when defendant's guilty plea was entered. Blackwell v. State, 230 Ga. App. 611, 496 S.E.2d 922 (1998).
When a defendant pled guilty to an alcohol possession charge in state court, O.C.G.A. § 16-1-7(b) did not bar a subsequent prosecution in superior court of felony molestation and sexual battery charges allegedly arising out of the same conduct; the defendant did not show that the officer who handled the state court action knew of the other alleged crimes. Barlowe v. State, 286 Ga. App. 133, 648 S.E.2d 471 (2007).
Subsequent prosecution not barred since municipal prosecutor without knowledge.
- Defendant's motion to dismiss on double jeopardy grounds an accusation brought in the superior court alleging separate charges of fleeing or attempting to elude an officer, misdemeanor obstruction of an officer, reckless driving, and speeding was properly denied as the superior court prosecution was not barred because there was no evidence that the municipal court prosecutor had actual knowledge of the criminal conduct taking place outside of the city limits as the prosecutor explained that the only way cases came to the prosecutor was by way of a citation issued by the city; and any state warrants or reports associated with the defendant's case did not and would not have gone to the municipal prosecutor. Millsaps v. State, 341 Ga. App. 337, 801 S.E.2d 63 (2017).
Plea on local ordinance did not impact state prosecution.
- Order barring the defendant's prosecution for aggravated assault and aggravated battery on double jeopardy grounds based on the defendant's prior guilty plea to violating a disorderly conduct ordinance, a charge arising from the same fight, was error because the defendant failed to set forth the elements of the ordinance, and failed to properly plead and prove the ordinance; Georgia courts are not allowed to take judicial notice of local ordinances, but, rather, the ordinances must be alleged and proved by production of the original or of a properly certified copy. Further, because the defendant failed to prove below that the charges could have been brought within the jurisdiction of a single court and that the proper prosecuting attorney knew of the recorder's court proceedings, the trial court was not authorized to grant the plea in bar under O.C.G.A. § 16-1-7(b). State v. Jeffries, 298 Ga. App. 141, 679 S.E.2d 368 (2009).
Offenses not arising from same transaction.
- When the defendant was convicted of driving under the influence in municipal court and then prosecuted for vehicular homicide and driving under the influence in superior court, the latter prosecution was not barred by principles of double jeopardy since the offenses did not arise from the same transaction and, because the offenses were completed at different times and in different locations, there was no single court with jurisdiction over all the crimes. Lefler v. State, 210 Ga. App. 609, 436 S.E.2d 777 (1993).
After the defendant was arrested for various traffic-related offenses following an accident and the officer investigating the accident found evidence of controlled substance violations, a separate prosecution of the traffic offenses after prosecution for the controlled substance offenses was not barred by double jeopardy since the offenses involved different acts and occurred on different dates and in different locations. State v. Steien, 214 Ga. App. 345, 447 S.E.2d 701 (1994).
Prosecution for forgery was not barred by O.C.G.A. § 16-1-7 where the forgery involved different parties, circumstances, locations, and times, and did not arise from the same transaction as other traffic and forgery charges. State v. Hulsey, 216 Ga. App. 670, 455 S.E.2d 398 (1995).
Following a mistrial in the trial of defendant for theft by taking, double jeopardy did bar defendant's reindictment on the original charge and an additional count of theft by receiving stolen property because the evidence showed the commission of separate crimes by separate individuals. Wilson v. State, 229 Ga. App. 455, 494 S.E.2d 267 (1997).
Offense of cruelty to children did not arise from the same transaction as the offenses of possession of marijuana or simple battery and, therefore, prosecution for the former offense was not barred because defendant had been charged with the other offenses. State v. Cornette, 229 Ga. App. 487, 494 S.E.2d 289 (1997).
Appellate court found that the court was compelled to uphold the trial court's denial of the defendant's double jeopardy plea in bar on the basis that the defendant did not affirmatively show the prosecutor actually knew of the other crimes when the prosecutor prosecuted the first offense. Banks v. State, 320 Ga. App. 98, 739 S.E.2d 414 (2013).
Each and every transaction in which the defendant, the director and a fiduciary of the animal shelter, took money belonging to the animal shelter with the intent of depriving the facility of that money constituted a separate and distinct completed crime; thus, the defendant's convictions for theft by taking did not merge into one count. Kilby v. State, 335 Ga. App. 238, 780 S.E.2d 411 (2015), cert. denied, No. S16C0653, No. S16C0653, 2016 Ga. LEXIS 437 (Ga. 2016).
Trial court erred by granting the defendant's double jeopardy plea in bar because the crimes charged in the second indictment did not arise from the same conduct alleged in the first indictment as the possession of material depicting a minor engaged in sexual conduct, as alleged in the first indictment, was vastly different conduct from actually transmitting pornography to a child or fondling the child's buttocks as alleged in the second indictment. State v. Davis, 338 Ga. App. 580, 790 S.E.2d 821 (2016).
Trial court did not err by denying the defendant's plea in bar because the defendant's prior acquittal for an armed robbery of a location across the street from the location involved in the instant action did not preclude prosecution when the robberies, though committed at nearby locations, occurred three weeks apart at different locations, against different victims and, thus, did not constitute a continuing course of conduct. Daniels v. State, 355 Ga. App. 134, 843 S.E.2d 18 (2020).
Prosecution on state and federal charges of murder and kidnapping held proper.
- Since the facts necessary to prove the federal charges of kidnapping and interstate travel with intent to commit murder for extortion are different from the facts necessary to prove the Georgia charges of murder and aggravated assault, there was no violation of either Georgia's statutes barring multiple prosecutions or the constitutional prohibition against double jeopardy, when the defendants were prosecuted in federal and state courts for all of the above offenses. Satterfield v. State, 256 Ga. 593, 351 S.E.2d 625 (1987).
Multiple underlying felonies in felony murder case.
- Appropriate manner for charging felony murder in instances when more than one underlying felony is alleged is to indict for one count of felony murder, and enumerate the multiple underlying felonies. State v. McBride, 261 Ga. 60, 401 S.E.2d 484 (1991).
If there are multiple underlying felonies, the state is not required to elect between those felonies when charging the defendant with felony murder. State v. McBride, 261 Ga. 60, 401 S.E.2d 484 (1991).
Malice murder conviction vacates felony murder charge.
- By operation of O.C.G.A. § 16-1-7, the trial court's proper entry of a judgment of conviction upon the jury's finding defendant guilty of malice murder vacated a felony murder charge. Tiller v. State, 267 Ga. 888, 485 S.E.2d 720 (1997).
When a defendant had been convicted of malice murder, felony murder, armed robbery, and other crimes, the trial court did not err by failing to merge the armed robbery counts into the felony murder count predicated on the underlying felony of armed robbery as the felony murder count was vacated by operation of O.C.G.A. § 16-1-7, and the defendant could be sentenced for the felony conviction so long as the felony was not included in the murder as a matter of fact or law; here, the armed robbery was not included in the malice murder charge as a matter of fact or law; evidence showing the defendant's intent to rob the victim was not used in proving the murder, and evidence that the defendant shot the victim was not used to prove the armed robbery. Davis v. State, 281 Ga. 871, 644 S.E.2d 113 (2007).
Felony prosecution not barred by prior plea of guilty to traffic offense.
- Defendant's entry of a plea of guilty to a traffic code violation did not bar prosecution for felony charges arising out of defendant's stop for the traffic violation, where it would have been unreasonable to impute the knowledge of one prosecuting officer to another, since two entirely separate prosecuting officers were involved and defense counsel had deliberately set out to exploit the situation by seeking expeditious disposition of the traffic violation. Powe v. State, 181 Ga. App. 429, 352 S.E.2d 783 (1986).
Defendant's payment of a fine for a seat belt violation without entering a plea was not a "former prosecution" that barred defendant's later prosecution for vehicular homicide and other charges arising out of the same conduct, since the fine was accepted in error and without the permission or knowledge of the prosecutor's office or the court. Brown v. State, 251 Ga. App. 569, 554 S.E.2d 760 (2001).
Subsequent prosecution on lesser included offense not barred.
- Trial court erred by dismissing the indictment against the defendant charging voluntary manslaughter because the acquittal on the greater offense of malice murder did not preclude a retrial on the lesser offense of voluntary manslaughter. State v. Williams, 322 Ga. App. 341, 744 S.E.2d 883 (2013).
Forfeiture proceedings not a bar to prosecution.
- Double jeopardy did not attach to bar prosecution of defendant on state drug charges following federal civil forfeiture proceedings because defendant's failure to contest the forfeiture meant defendant was not placed in jeopardy in those proceedings and, also, Georgia constitutional and statutory provisions did not bar the prosecution because they apply only to criminal proceedings, not civil proceedings. Waye v. State, 219 Ga. App. 22, 464 S.E.2d 19 (1995).
Civil forfeiture proceeding in a drug case was not a criminal prosecution for purposes of double jeopardy. Murphy v. State, 219 Ga. App. 474, 465 S.E.2d 497 (1995), aff'd, 267 Ga. 120, 475 S.E.2d 907 (1996).
Juvenile proceedings.
- After a juvenile pled guilty to various traffic offenses and paid the fines, such action barred proceedings on a petition seeking an adjudication of delinquency based on other charges related to the same automobile accident. In re J.B.W., 230 Ga. App. 673, 497 S.E.2d 1 (1998).
Because of the unique nature of juvenile court proceedings and the fact that a disposition or adjudication order is not a conviction of a crime, the doctrine of merger is inapplicable in juvenile proceedings. In the Interest of I. H., 350 Ga. App. 394, 829 S.E.2d 437 (2019).
Separate proceedings in separate jurisdictions.
- After a Georgia state patrolman began pursuing the defendant in one county after a radar check revealed that the defendant was speeding, the patrolman stated that the defendant's vehicle was observed "weaving" after the vehicle passed into the other county and that the patrolman detected a strong odor of alcohol on the defendant's breath upon stopping the defendant, and the patrolman issued two citations, one for speeding in one county and the other charging the defendant with driving under the influence of alcohol in the other county, a plea of guilty to the speeding charge in one county did not bar a Driving Under the Influence (DUI) prosecution in the other county. Morgan v. State, 195 Ga. App. 587, 394 S.E.2d 588 (1990).
Defendant's plea in bar and motion to dismiss the Fulton County charges was improperly denied as the defendant negotiated a plea deal in Clayton County; and the prosecution for false imprisonment in Fulton County was not distinct from those crimes to which the defendant pled in Clayton County because, by crossing the county line into Clayton County, a new crime was not committed against the victim, but was a continuation of a crime that had begun in Fulton County. Arnold v. State, 352 Ga. App. 777, 835 S.E.2d 759 (2019).
Motion to dismiss based upon prior municipal court proceeding.- Trial court did not err by denying the defendant's plea in bar and motion to dismiss the charges in the indictment based on a prior municipal court proceeding based on the same conduct because the defendant did not meet the defendant's burden to show that the city attorney had actual knowledge of all the facts supporting the trial court charges. The attorney, in testifying about the guilty plea the attorney took from the defendant in the first criminal proceeding, testified that the attorney could not say whether the attorney had actual knowledge of any offenses beyond the citations the attorney prosecuted. Massengille v. State, Ga. App. , S.E.2d (Sept. 18, 2020).
Subsequent prosecution not barred since prosecutor had no earlier knowledge.
- Denial of defendant's double jeopardy plea in bar was proper because the defendant did not affirmatively show the prosecutor actually knew of the other crimes when prosecuting the traffic offenses arising out of the same incident. Turner v. State, 238 Ga. App. 438, 518 S.E.2d 923 (1999).
When the facts relating to defendant's theft by taking and malfeasance in office convictions, allegedly arose from the same alleged conduct, but were not known to the state in a prior malpractice in office action and the new offenses involved proof of additional facts, the trial court properly denied the defendant's plea in bar of double jeopardy under O.C.G.A. §§ 16-1-7 and16-1-8. Atkinson v. State, 263 Ga. App. 274, 587 S.E.2d 332 (2003).
Because the defendant failed to affirmatively show that the prosecutor had any actual knowledge regarding the approximately $300,000 worth of jewelry items found in a toolbox located at the defendant's residence upon an eviction, which were the subject of a second theft prosecution involving jewelry the defendant had stolen, the second prosecution regarding those items was not barred on double jeopardy grounds. White v. State, 284 Ga. App. 805, 644 S.E.2d 903, cert. denied, No. S07C1243, 2007 Ga. LEXIS 564 (Ga. 2007).
As a prosecutor had no actual knowledge of a prior juvenile traffic citation that was resolved against the defendant, a juvenile, when the prosecutor initiated charges against the juvenile on delinquency traffic citations under O.C.G.A. § 15-11-73, the juvenile court properly denied the juvenile's motion to acquit and plea of double jeopardy under O.C.G.A. § 16-1-7(b). In re C. E. H., 297 Ga. App. 467, 677 S.E.2d 318 (2009).
Trial court did not err by denying the defendant's motion to dismiss on double jeopardy grounds because, before the first trial, the witness statements did not demand a finding, as a matter of law, that the prosecutor had actual knowledge that the defendant had committed the crimes of conspiring to distribute marijuana and distributing marijuana; and, with regard to the gang crime, there was evidence that the state knew only that the defendant had joined a gang years before, not that the defendant was currently involved in drug-related gang activity. Randolph v. State, 334 Ga. App. 475, 780 S.E.2d 19 (2015).
Trial court erred in dismissing the defendant's charge for DUI, O.C.G.A. § 40-6-391(k), on double jeopardy grounds under O.C.G.A. § 16-1-7(b) based on the prior disposal online of a separate seat belt citation; there was no showing that the solicitor had actual knowledge of the DUI charge at the time the seat belt charge was handled. State v. Garlepp, 338 Ga. App. 788, 790 S.E.2d 839 (2016).
Joinder and severance when offenses charged are based on same conduct.
- Severance is necessary, when same conduct affords basis of joinder, only in the interest of justice. This standard is quite similar to the American Bar Association standard of achieving "a fair determination of the defendant's guilt or innocence." Haisman v. State, 242 Ga. 896, 252 S.E.2d 397 (1979).
If multiple convictions arising out of single prosecution are barred, successive prosecution is also barred. Keener v. State, 238 Ga. 7, 230 S.E.2d 846 (1976), cert. denied, 433 U.S. 911, 97 S. Ct. 2980, 53 L. Ed. 2d 1096 (1977); Perkins v. State, 143 Ga. App. 124, 237 S.E.2d 658 (1977); Brock v. State, 146 Ga. App. 78, 245 S.E.2d 442 (1978).
Merger claims cannot be deemed waived.
- Merger claims cannot be waived, even following a guilty plea, because a conviction that merges as a matter of law or fact with another conviction is void, and any resulting sentence is void and illegal, which means that the claims may be challenged in any proper proceeding. Nazario v. State, 293 Ga. 480, 746 S.E.2d 109 (2013).
Former Code 1933, §§ 26-505 and 26-506 (see now O.C.G.A. §§ 16-1-6 and16-1-7) established alternative rules for determining when one crime was included in another as a matter of fact or as a matter of law. Harmon v. State, 235 Ga. 329, 219 S.E.2d 441 (1975); Williams v. State, 156 Ga. App. 481, 274 S.E.2d 826 (1980).
Several crimes arising from the same conduct and within the jurisdiction of a single court must be prosecuted in a single prosecution except where the court, in the interest of justice, orders one or more of the charges to be tried separately. Manning v. State, 162 Ga. App. 494, 292 S.E.2d 95 (1982).
Same conduct establishes more than one crime.
- While O.C.G.A. § 16-1-7(a) prohibits multiple convictions for the same conduct, it also provides that when the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. Lunsford v. State, 260 Ga. App. 818, 581 S.E.2d 638 (2003).
When prosecutions in different courts of same state viewed as acts of single sovereign.
- Prosecutions of same defendant in different courts of same state, one prosecution being for a felony and the other being for a misdemeanor which was included in the felony offense must be viewed as acts of a single sovereign under double jeopardy clause of Fifth Amendment. Brock v. State, 146 Ga. App. 78, 245 S.E.2d 442 (1978).
Where recorder's court acted without jurisdiction.
- When recorder's court lacked jurisdiction to try a defendant for driving without insurance, a violation of former O.C.G.A. § 33-34-12(see now O.C.G.A. § 40-5-70 et seq.), neither O.C.G.A. § 16-1-7(b) nor O.C.G.A. § 16-1-8 precluded later prosecution in superior court for operating a motor vehicle after having been declared an habitual violator and for driving under the influence. Parker v. State, 170 Ga. App. 333, 317 S.E.2d 209 (1984).
When the proceeding in recorder's court was null and void because the court lacked jurisdiction to try appellant for a state law violation, the defendant's retrial was not a violation of double jeopardy or prior prosecution. Duncan v. State, 185 Ga. App. 854, 366 S.E.2d 154 (1988), overruled on other grounds, Kolker v. State, 193 Ga. App. 306, 387 S.E.2d 597 (1989).
Venue in more than one county.
- In a kidnapping and murder case, where venue over the murder charge could lie in either of two counties, but venue over the kidnapping was solely in one of the counties, O.C.G.A. § 16-1-7 did not require that prosecution of the "dual venue" criminal charge must occur in the one county where the other criminal charge arising out of the same multi-county crime spree was required to be prosecuted; even though the state sought to prosecute the defendant on the murder charge initially in the county that did not have venue of the kidnapping, there was no procedural bar to the state's prosecuting both charges in the county with venue of both so long as the county comported with the "single prosecution requirement." Griffin v. State, 266 Ga. 115, 464 S.E.2d 371 (1995).
When bond forfeiture declared final disposition.
- When a person is arrested for driving under the influence of alcohol, posts a cash bond, and fails to appear in court, and the judge enters an order forfeiting the bond, declaring the forfeiture to be a final disposition of the case, a subsequent arraignment and trial for driving under the influence of alcohol constitutes double jeopardy, and it is error to deny a plea in bar of trial. Wilson v. State, 167 Ga. App. 421, 306 S.E.2d 704 (1983).
No issue of fact as to whether one crime included in another.
- Court did not err in failing to instruct the jury to decide which one of the offenses charged in the indictment or of the lesser included offense to find defendant guilty of. There was no issue of fact as to whether one crime was included in another and the court was not required to charge on O.C.G.A. § 16-1-7. Leslie v. State, 211 Ga. App. 871, 440 S.E.2d 757 (1994).
Application to verdict.
- Since O.C.G.A. § 16-1-7(a) provides that one cannot be "convicted" of more than one crime arising from the same conduct, it has no application to the verdict. Sanders v. State, 212 Ga. App. 832, 442 S.E.2d 923 (1994).
Even though charges of aggravated sodomy and aggravated child molestation arose out of the same act, the jury could find defendant guilty of both offenses, and the trial court was not required to direct a verdict as to one of the offenses. Sartin v. State, 223 Ga. App. 759, 479 S.E.2d 354 (1996).
Trial court did not err in denying defendant's motion for a directed verdict on the basis that several counts alleged in the indictment merged because the same facts were used to prove them; although O.C.G.A. § 16-1-7 provides that one cannot be "convicted" of more than one crime arising from the same conduct, it has no application to the verdict. Williams v. State, 233 Ga. App. 217, 504 S.E.2d 53 (1998).
When first jury hung, additional charges may not be brought as penalty.
- When first trial results in a hung jury, the defendant is not to be penalized for the state's failure to obtain a conviction by the addition of new charges at the second trial. Curry v. State, 248 Ga. 183, 281 S.E.2d 604 (1981).
Trial following mistrial on a new indictment charging involuntary manslaughter in two separate counts was not barred simply because the original indictment charged defendant with the same crime in a single count. Casillas v. State, 267 Ga. 541, 480 S.E.2d 571 (1997).
Re-prosecution for lesser included crimes.
- If a defendant is tried and convicted of a crime, and that conviction is reversed due to insufficient evidence, procedural double jeopardy bars re-prosecution for that same crime and any lesser included crime. Prater v. State, 273 Ga. 477, 541 S.E.2d 351 (2001).
Offenses should have been merged.
- Convictions of aggravated assault with intent to commit rape and aggravated assault with a deadly weapon by a husband who demanded sex from his estranged wife, stabbed his wife in the back when she refused, and then partially penetrated her, should have been merged prior to sentencing; therefore, the case was remanded. Lynn v. State, 251 Ga. App. 155, 553 S.E.2d 836 (2001).
Defendant's convictions for possession of a firearm during the commission of a crime (criminal attempt to commit kidnapping) and possession of a firearm during the commission of a crime (aggravated assault) should have been merged. Carpenter v. State, 343 Ga. App. 355, 808 S.E.2d 229 (2017), cert. denied, 2018 Ga. LEXIS 312 (Ga. 2018).
Sexual offenses should have merged.
- When two counts charged the defendant with touching, in some way, the victim's genitals, and the record showed that it occurred in a single incident, the conduct charged in those counts was a single unit of prosecution, and those counts should have merged for sentencing. Hogg v. State, Ga. App. , 846 S.E.2d 183 (2020).
Parole and probation revocation proceedings.
- Permitting defendant to be prosecuted in successive actions for probation revocation based on violations that were part of the same conduct did not violate double jeopardy. Perry v. State, 213 Ga. App. 220, 444 S.E.2d 150 (1994).
Subsequent prosecution denied since prosecutor had earlier knowledge.
- At the time defendant pled guilty to reckless conduct, the prosecutor was aware facts in the arrest report clearly contained evidence of aggravated assault, therefore, knowledge of other crimes was imputed to the prosecutor and subsequent prosecution of defendant under aggravated assault indictments was barred by O.C.G.A. §§ 16-1-7 and16-1-8. Billups v. State, 228 Ga. App. 804, 493 S.E.2d 8 (1997).
Officer's single ambiguous comment to internal affairs describing the officer's sexual assault on woman in the officer's custody was insufficient as a matter of law to affirmatively demonstrate the prosecutor's actual knowledge prior to trial that an act of sodomy had occurred during the alleged assault on the complainant; therefore, the prosecutorial bar under O.C.G.A. § 16-1-7(b) did not apply. State v. Goble, 231 Ga. App. 697, 500 S.E.2d 35 (1998).
Subsequent prosecution not barred where municipal court lacked jurisdiction.
- Since the municipal court lacked jurisdiction to try defendant pursuant to a Uniform Traffic Citation charging him with "simple battery" in violation of "Section16-5-23", prosecution of the offense before such court was void; accordingly, trial of defendant for simple battery in the state court was not barred on the ground of double jeopardy or prior prosecution. Rangel v. State, 217 Ga. App. 152, 456 S.E.2d 739 (1995).
Indictment on charges previously nolle prossed.
- It was not a violation of O.C.G.A. §§ 16-1-7(b) and16-1-8(b) to indict the defendant on charges that had previously been nolle prossed under a plea agreement; the defendant breached the agreement by withdrawing a guilty plea to one charge, thereby allowing the state to indict the defendant on the charges that were previously nolle prossed. Thomas v. State, 285 Ga. App. 792, 648 S.E.2d 111, cert. denied, No. S07C1550, 2007 Ga. LEXIS 628 (Ga. 2007).
Trial court did not err by entering judgment on multiple counts.
- Because a conviction on a charge of aggravated assault could be based on the defendant's act of cutting of the victim's throat, while a conviction on a charge of aggravated battery could be based on the serious disfigurement of the victim's arms, the trial court did not err by entering judgment on both counts. Goss v. State, 289 Ga. App. 734, 658 S.E.2d 168 (2008).
Appellate review.
- Because one may not be legally convicted of a crime that is included as a matter of law or fact in another crime for which that person stands convicted, an appellate court must vacate the conviction and sentence for an included crime, even where the issue of merger was not raised in the trial court. Brewster v. State, 261 Ga. App. 795, 584 S.E.2d 66 (2003).
Cited in Rowland v. State, 124 Ga. App. 494, 184 S.E.2d 494 (1971); Ansley v. State, 124 Ga. App. 670, 185 S.E.2d 562 (1971); Ezzard v. State, 229 Ga. 465, 192 S.E.2d 374 (1972); Callahan v. State, 229 Ga. 737, 194 S.E.2d 431 (1972); Loftin v. State, 230 Ga. 92, 195 S.E.2d 402 (1973); Howard v. State, 128 Ga. App. 807, 198 S.E.2d 334 (1973); Brown v. State, 129 Ga. App. 743, 201 S.E.2d 14 (1973); Lingerfelt v. State, 231 Ga. 354, 201 S.E.2d 445 (1973); Estevez v. State, 130 Ga. App. 215, 202 S.E.2d 686 (1973); Bennett v. State, 130 Ga. App. 510, 203 S.E.2d 755 (1973); Ansley v. Stynchcombe, 480 F.2d 437 (5th Cir. 1973); Echols v. State, 231 Ga. 633, 203 S.E.2d 165 (1974); Burden v. State, 131 Ga. App. 522, 206 S.E.2d 533 (1974); Dyke v. State, 232 Ga. 817, 209 S.E.2d 166 (1974); Spence v. State, 233 Ga. 527, 212 S.E.2d 357 (1975); Owens v. State, 233 Ga. 905, 213 S.E.2d 860 (1975); Harshaw v. State, 134 Ga. App. 581, 215 S.E.2d 337 (1975); Summerour v. State, 135 Ga. App. 43, 217 S.E.2d 378 (1975); Lanthrip v. State, 235 Ga. 10, 218 S.E.2d 771 (1975); Tarpkin v. State, 236 Ga. 67, 222 S.E.2d 364 (1976); Hardin v. Hopper, 237 Ga. 139, 227 S.E.2d 43 (1976); Frazier v. State, 138 Ga. App. 640, 227 S.E.2d 284 (1976); Mena v. State, 138 Ga. App. 722, 227 S.E.2d 411 (1976); Thomas v. State, 237 Ga. 690, 229 S.E.2d 458 (1976); Jones v. State, 238 Ga. 51, 230 S.E.2d 865 (1976); Bonner v. State, 140 Ga. App. 314, 231 S.E.2d 120 (1976); Neel v. State, 140 Ga. App. 691, 231 S.E.2d 394 (1976); Williams v. State, 238 Ga. 298, 232 S.E.2d 535 (1977); Padgett v. State, 142 Ga. App. 139, 235 S.E.2d 545 (1977); Padgett v. State, 239 Ga. 556, 238 S.E.2d 92 (1977); Hawes v. State, 239 Ga. 630, 238 S.E.2d 418 (1977); Hiatt v. State, 144 Ga. App. 298, 240 S.E.2d 894 (1977); Corson v. State, 144 Ga. App. 559, 241 S.E.2d 454 (1978); Underwood v. State, 144 Ga. App. 684, 242 S.E.2d 339 (1978); State v. Bolton, 144 Ga. App. 797, 242 S.E.2d 378 (1978); Potts v. State, 241 Ga. 67, 243 S.E.2d 510 (1978); Ramsey v. State, 145 Ga. App. 60, 243 S.E.2d 555 (1978); State v. Gilder, 145 Ga. App. 731, 245 S.E.2d 3 (1978); Coaxum v. State, 146 Ga. App. 370, 246 S.E.2d 403 (1978); State v. Gilder, 242 Ga. 285, 248 S.E.2d 659 (1978); Carnes v. State, 242 Ga. 286, 248 S.E.2d 660 (1978); Hizine v. State, 148 Ga. App. 375, 251 S.E.2d 393 (1978); Dowdy v. State, 148 Ga. App. 498, 251 S.E.2d 571 (1978); Callahan v. State, 148 Ga. App. 555, 251 S.E.2d 790 (1978); Godfrey v. State, 243 Ga. 302, 253 S.E.2d 710 (1979); Boykin v. State, 149 Ga. App. 457, 254 S.E.2d 457 (1979); Benton v. State, 150 Ga. App. 647, 258 S.E.2d 298 (1979); Schamber v. State, 152 Ga. App. 196, 262 S.E.2d 533 (1979); Groves v. State, 152 Ga. App. 606, 263 S.E.2d 501 (1979); Duke v. State, 153 Ga. App. 204, 264 S.E.2d 721 (1980); Thomas v. State, 153 Ga. App. 229, 264 S.E.2d 734 (1980); Askea v. State, 153 Ga. App. 849, 267 S.E.2d 279 (1980); Park v. State, 154 Ga. App. 348, 268 S.E.2d 401 (1980); State v. Gilmer, 154 Ga. App. 673, 270 S.E.2d 25 (1980); State v. Everett, 155 Ga. App. 162, 270 S.E.2d 345 (1980); Trimble v. State, 156 Ga. App. 9, 274 S.E.2d 10 (1980); Bailey v. State, 157 Ga. App. 222, 276 S.E.2d 843 (1981); Bowens v. State, 157 Ga. App. 334, 277 S.E.2d 326 (1981); Ward v. State, 248 Ga. 60, 281 S.E.2d 503 (1981); Peavy v. State, 159 Ga. App. 280, 283 S.E.2d 346 (1981); Godfrey v. State, 248 Ga. 616, 284 S.E.2d 422 (1981); Jones v. State, 161 Ga. App. 620, 288 S.E.2d 795 (1982); Rentz v. State, 162 Ga. App. 357, 291 S.E.2d 434 (1982); Smith v. State, 163 Ga. App. 531, 295 S.E.2d 208 (1982); Westmoreland v. State, 164 Ga. App. 455, 297 S.E.2d 357 (1982); Harris v. State, 165 Ga. App. 249, 299 S.E.2d 924 (1983); Miller v. State, 165 Ga. App. 638, 302 S.E.2d 394 (1983); Mease v. State, 165 Ga. App. 746, 302 S.E.2d 429 (1983); Potts v. Zant, 575 F. Supp. 374 (N.D. Ga. 1983); In re T.E.D., 169 Ga. App. 401, 312 S.E.2d 864 (1984); Bert v. State, 169 Ga. App. 628, 314 S.E.2d 466 (1984); Felker v. State, 252 Ga. 351, 314 S.E.2d 621 (1984); Weaver v. State, 169 Ga. App. 890, 315 S.E.2d 467 (1984); Chitwood v. State, 170 Ga. App. 599, 317 S.E.2d 589 (1984); Bowens v. State, 171 Ga. App. 364, 320 S.E.2d 189 (1984); Strozier v. State, 171 Ga. App. 703, 320 S.E.2d 764 (1984); Caldwell v. State, 171 Ga. App. 680, 320 S.E.2d 888 (1984); Stone v. State, 253 Ga. 433, 321 S.E.2d 723 (1984); Pittman v. State, 172 Ga. App. 22, 320 S.E.2d 71 (1984); Welch v. State, 172 Ga. App. 476, 323 S.E.2d 622 (1984); Jordan v. State, 172 Ga. App. 496, 323 S.E.2d 657 (1984); Ingram v. State, 253 Ga. 622, 323 S.E.2d 801 (1984); State v. Martin, 173 Ga. App. 370, 326 S.E.2d 558 (1985); Ridgeway v. State, 174 Ga. App. 663, 330 S.E.2d 916 (1985); Colsson v. State, 177 Ga. App. 840, 341 S.E.2d 318 (1986); Clarington v. State, 178 Ga. App. 663, 344 S.E.2d 485 (1986); Few v. State, 179 Ga. App. 166, 345 S.E.2d 643 (1986); Catchings v. State, 256 Ga. 241, 347 S.E.2d 572 (1986); Gordon v. State, 181 Ga. App. 391, 352 S.E.2d 582 (1986); Matthews v. State, 181 Ga. App. 819, 354 S.E.2d 175 (1987); Hendrick v. State, 257 Ga. 514, 361 S.E.2d 169 (1987); Johnson v. State, 257 Ga. 731, 363 S.E.2d 540 (1988); Sparks v. State, 185 Ga. App. 225, 363 S.E.2d 631 (1987); Hanvey v. State, 186 Ga. App. 690, 368 S.E.2d 357 (1988); Pruitt v. State, 258 Ga. 583, 373 S.E.2d 192 (1988); Armfield v. State, 259 Ga. 43, 376 S.E.2d 369 (1989); State v. Evans, 192 Ga. App. 216, 384 S.E.2d 404 (1989); State v. Smith, 193 Ga. App. 831, 389 S.E.2d 547 (1989); Neal v. State, 198 Ga. App. 13, 400 S.E.2d 375 (1990); Young v. State, 199 Ga. App. 520, 405 S.E.2d 338 (1991); Loden v. State, 199 Ga. App. 683, 406 S.E.2d 103 (1991); Timberlake v. State, 200 Ga. App. 64, 406 S.E.2d 537 (1991); Lewis v. State, 262 Ga. 679, 424 S.E.2d 626 (1993); Gentry v. State, 206 Ga. App. 490, 426 S.E.2d 52 (1992); Hill v. State, 207 Ga. App. 65, 426 S.E.2d 915 (1993); Moore v. State, 207 Ga. App. 673, 428 S.E.2d 678 (1993); Burtts v. State, 269 Ga. 402, 499 S.E.2d 326 (1998); Golden v. State, 233 Ga. App. 703, 505 S.E.2d 242 (1998); Holmes v. State, 272 Ga. 517, 529 S.E.2d 879 (2000); Allen v. State, 272 Ga. 513, 530 S.E.2d 186 (2000); Donaldson v. State, 244 Ga. App. 89, 534 S.E.2d 839 (2000); Beasley v. State, 244 Ga. App. 836, 536 S.E.2d 825 (2000); Gissendaner v. State, 272 Ga. 704, 532 S.E.2d 677 (2000); Stone v. State, 245 Ga. App. 728, 538 S.E.2d 791 (2000); Stowe v. State, 272 Ga. 866, 536 S.E.2d 506 (2000); Rhode v. State, 274 Ga. 377, 552 S.E.2d 855 (2001); Ruffin v. State, 252 Ga. App. 289, 556 S.E.2d 191 (2001); Henderson v. State, 252 Ga. App. 295, 556 S.E.2d 204 (2001); Tesfaye v. State, 275 Ga. 439, 569 S.E.2d 849 (2002); Curtis v. State, 275 Ga. 576, 571 S.E.2d 376 (2002); Glover v. State, 258 Ga. App. 527, 574 S.E.2d 565 (2002); Wilkerson v. State, 267 Ga. App. 585, 600 S.E.2d 677 (2004); Cole v. State, 282 Ga. App. 211, 638 S.E.2d 363 (2006); Sturgis v. State, 282 Ga. 88, 646 S.E.2d 233 (2007); Leachman v. State, 286 Ga. App. 708, 649 S.E.2d 886 (2007); Walker v. Hale, 283 Ga. 131, 657 S.E.2d 227 (2008); Bennett v. State, 292 Ga. App. 382, 665 S.E.2d 365 (2008); Armstrong v. State, 292 Ga. App. 145, 664 S.E.2d 242 (2008); Smith v. State, 284 Ga. 304, 667 S.E.2d 65 (2008); Wells v. State, 294 Ga. App. 277, 668 S.E.2d 881 (2008); Henley v. State, 285 Ga. 500, 678 S.E.2d 884 (2009); Strickland v. State, 300 Ga. App. 898, 686 S.E.2d 486 (2009); State v. Leatherwood, 326 Ga. App. 730, 757 S.E.2d 434 (2014); Dyal v. State, 297 Ga. 184, 773 S.E.2d 249 (2015); Spears v. State, 296 Ga. 598, 769 S.E.2d 337 (2015), overruled on other grounds by Willis v. State, 304 Ga. 686, 820 S.E.2d 640 (2018); Woods v. State, 342 Ga. App. 301, 802 S.E.2d 822 (2017); Patterson v. State, 347 Ga. App. 105, 817 S.E.2d 557 (2018); Vasquez v. State, 306 Ga. 216, 830 S.E.2d 143 (2019); Cordova v. State, 351 Ga. App. 652, 832 S.E.2d 465 (2019).
Included Crimes
1. In General
Applicability of test under double jeopardy clause of Fifth Amendment.
- When same act or transaction constitutes a violation of two distinct statutory provisions, test to be applied to determine whether there are two offenses or only one for purposes of double jeopardy clause of the Fifth Amendment is whether each provision requires proof of a fact which the other does not. Brock v. State, 146 Ga. App. 78, 245 S.E.2d 442 (1978).
When crimes charged are same in law or fact.
- Former Code 1933, § 26-506(a) provided that although defendant may be prosecuted for all crimes committed, defendant may not be convicted of more than one crime if crimes charged are same in law or fact. Bailey v. State, 146 Ga. App. 774, 247 S.E.2d 588 (1978).
Although defendant may be prosecuted for all crimes committed, defendant may not be convicted of more than one crime if crimes charged are same in law or fact. Gunter v. State, 155 Ga. App. 176, 270 S.E.2d 224 (1980).
Required evidence test adopted.
- In determining when one crime is included in another under O.C.G.A. §§ 16-1-6(1) and16-1-7(a), the actual evidence test has been overruled and replaced with the Blockburger required evidence test, as this is consistent with the statutory framework of O.C.G.A. § 16-1-6(1), which speaks of required elements. Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006).
Multiple punishment is barred if crime is same as matter of fact or law as specified in criminal code. State v. Estevez, 232 Ga. 316, 206 S.E.2d 475 (1974), overruled on other grounds Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006).
Transactions must be identical both as matter of fact and law. Hiatt v. State, 133 Ga. App. 111, 210 S.E.2d 22 (1974).
O.C.G.A.
§ 16-1-6 construed. - Paragraph (1) of former Code 1933, § 26-505 set (see now O.C.G.A. § 16-1-6) out rules for determining included crimes as a matter of fact, while paragraph (2) sets out rules for determining included crimes as a matter of law. Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 667 (1978).
Aggravating circumstances.
- Inclusion provisions of former Code 1933, §§ 26-505 and 26-506 (see now O.C.G.A. §§ 16-1-6 and16-1-7) did not apply to aggravating circumstances but to crimes. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781, overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002).
Corollary of subsection (a) is that defendant cannot be convicted separately of both crimes.
- If defendant can be indicted and tried on one trial for two crimes arising from same conduct, but not convicted of more than one offense if one is lesser included in the other or they differ only in that one prohibits conduct generally and the other specifically, it follows that a defendant can be tried and convicted separately of either one or the other of the two crimes, but not both. State v. O'Neal, 156 Ga. App. 384, 274 S.E.2d 575 (1980).
Doctrine of merger is still law in this state. Burns v. State, 127 Ga. App. 828, 195 S.E.2d 189 (1973).
Merger not required when greater offense not charged.
- Evidence that the object of a conspiracy to traffic in cocaine is completed does not preclude prosecution for conspiracy to traffic in cocaine rather than the substantive offense of trafficking in cocaine. Stafford v. State, 187 Ga. App. 401, 370 S.E.2d 646 (1988).
Considering lesser offense upon finding guilt as to greater offense.
- Where offense of simple battery was properly charged as lesser included offense of aggravated assault under indictment and evidence and, as such, defendant could not have been convicted of both aggravated assault and simple battery, trial court was justified in instructing jury so as to prevent them from needlessly considering charge of simple battery if they found defendant guilty of aggravated assault. Harper v. State, 157 Ga. App. 480, 278 S.E.2d 28 (1981).
Request for charge on lesser included offense on retrial.
- Upon retrial for a murder charge which had been dismissed after mistrial, the state was not precluded from requesting a charge on the lesser included offense of voluntary manslaughter as was requested at the trial on the original indictment. Rhyne v. State, 209 Ga. App. 548, 434 S.E.2d 76 (1993), aff'd, 264 Ga. 176, 442 S.E.2d 742 (1994).
Effect of conviction of lesser crime on retrial after reversal of conviction of greater crime.
- When there is a conviction of two crimes in a single prosecution, one of which is included in the other and the defendant obtains reversal of major crime for lack of jurisdiction, remaining conviction of lesser crime does not bar retrial on major crime. In the event the defendant is then convicted on retrial for a major crime, invalidation of the defendant's conviction of a lesser included offenses for the same conduct would be authorized in appropriate proceedings. Keener v. State, 238 Ga. 7, 230 S.E.2d 846 (1976), cert. denied, 433 U.S. 911, 97 S. Ct. 2980, 53 L. Ed. 2d 1096 (1977).
2. Crimes Against the Person
Underlying felony is a lesser included offense of felony murder, and conviction of both offenses is proscribed under the provisions of former Code 1933, § 26-506(a)(1). Woods v. State, 233 Ga. 495, 212 S.E.2d 322 (1975); Atkins v. Hopper, 234 Ga. 330, 216 S.E.2d 89 (1975); Moss v. State, 262 Ga. 702, 425 S.E.2d 289, overruled on other grounds, Malcolm v. State, 263 Ga. 369, 434 S.E.2d 479 (1993).
As felony murder is defined under Georgia law, the underlying felony is a lesser included offense of felony murder and thus the same offense for double jeopardy purposes. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir.), cert. denied, 454 U.S. 1035, 102 S. Ct. 575, 70 L. Ed. 2d 480 (1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).
Serious injury by vehicle and vehicular homicide did not merge.
- Five convictions for serious injury by vehicle and a conviction for vehicular homicide did not merge; although the convictions stemmed from one incident of driving under the influence, there were separate victims for each offense. Harris v. State, 272 Ga. App. 366, 612 S.E.2d 557 (2005).
Serious injury by vehicle prosecution barred as defendant pled guilty to failure to maintain lane.
- Under O.C.G.A. §§ 16-1-7(b) and16-1-8, double jeopardy protection barred the defendant's prosecution for, inter alia, serious injury by vehicle because the defendant had earlier pled guilty in magistrate's court to failure to maintain a lane arising out of the same accident; both charges could have been tried in the superior court, and it was apparent from the record that the prosecuting officer knew that the defendant had been charged with both offenses. When the defendant appeared in court initially, both charges were pending, and the magistrate court judge bound over the serious injury by vehicle charge. Etienne v. State, 298 Ga. App. 149, 679 S.E.2d 375 (2009).
Armed robbery as lesser included offense of felony murder. See Berryhill v. Ricketts, 242 Ga. 447, 249 S.E.2d 197 (1978).
When proof of the armed robbery is essential to the conviction for felony murder, the armed robbery is a lesser included offense in the felony murder. Sanborn v. State, 251 Ga. 169, 304 S.E.2d 377 (1983); Allen v. State, 262 Ga. 649, 424 S.E.2d 1 (1993).
Armed robbery as included offense of malice murder.
- When the defendant is charged with an armed robbery of a murder victim, proof of the armed robbery is essential to support the defendant's conviction of malice murder and is an included offense. Burke v. State, 234 Ga. 512, 216 S.E.2d 812 (1975).
Defendant's conviction for armed robbery was properly not merged into a malice murder conviction pursuant to O.C.G.A. § 16-1-7(a)(1), based on the "required evidence" test, as each offense required proof of an element that the other did not. Culpepper v. State, 289 Ga. 736, 715 S.E.2d 155 (2011).
Armed robbery and kidnapping are clearly not included offenses as a matter of law, nor are they included offenses as a matter of fact where the two offenses are based on separate acts. Emmett v. State, 199 Ga. App. 650, 405 S.E.2d 707 (1991), cert. denied, 199 Ga. App. 905, 405 S.E.2d 707 (1991).
Armed robbery and hijacking.
- Defendant's separate convictions for armed robbery and hijacking a motor vehicle did not violate the prohibitions against double jeopardy as O.C.G.A. § 16-5-44.1(d) provided that hijacking a motor vehicle was a separate offense and did not merge and it therefore superseded the state statutory double jeopardy provision; further, the Georgia Constitution did not prohibit additional punishment for a separate offense that the Georgia legislature had deemed to warrant a separate sanction; the defendant failed to show how the hijacking statute violated the federal double jeopardy clause. Mullins v. State, 280 Ga. App. 689, 634 S.E.2d 850 (2006).
Aggravated assault with a deadly weapon and intent to murder.
- Defendant's convictions for aggravated assault with a deadly weapon and aggravated assault with intent to murder merged for sentencing because both counts of the indictment alleged that the defendant committed aggravated assault by slashing the victim's neck; although one count alleged that the assault was done with a deadly weapon and the other alleged that it was done with the intent to commit murder, O.C.G.A. § 16-5-21(a)(1) and (a)(2), the counts were clearly based on a single act since the razor or knife used in that assault broke while it was pressed against the victim's neck and, thus, the counts merely charged the same act of aggravated assault being committed in two of the multiple ways set out in O.C.G.A. § 16-3-21. Thomas v. State, 310 Ga. App. 404, 714 S.E.2d 37 (2011).
Aggravated assault and burglary convictions properly kept separate from armed robbery.
- Trial court did not err by failing to merge for purposes of sentencing a defendant's aggravated assault and/or the burglary conviction with the armed robbery conviction since, with regard to the aggravated assault and armed robbery convictions, the evidence showed that the victim was first threatened with a gun in an attempt to rob, that, separately, the victim was pistol-whipped with a gun and struck with a hard object in an attempt to rob, and that finally, the victim was shot in an attempt to rob, thus, the trial court was authorized to conclude that the physical beating and either incident of gun use were separate completed crimes. Accordingly, the trial court was authorized to convict the defendant for aggravated assault for the physical beating and for armed robbery by use of a gun and, similarly, the burglary occurred when the defendant walked into the victim's home with intent to rob, which event was separated by time from the aggravated assault and armed robbery, therefore, all three crimes were separate completed crimes and merger was not required. Yates v. State, 298 Ga. App. 727, 681 S.E.2d 190 (2009).
Kidnapping, armed robbery, and aggravated assault.
- Trial court's decision not to merge the conviction of kidnapping, in violation of O.C.G.A. § 16-5-40, with defendant's convictions for aggravated assault and armed robbery, in violation of O.C.G.A. §§ 16-5-21 and16-8-41, was proper under O.C.G.A. § 16-1-7(a), as the facts that supported the kidnapping were not the same as those that supported the convictions for the other offenses; the kidnapping occurred when defendant forced three store employees into an office, the aggravated assaults occurred when defendant pointed a gun at one employee's head and hit another employee with it, and the armed robbery occurred when defendant took money from the store safe. Hill v. State, 279 Ga. App. 666, 632 S.E.2d 443 (2006).
Kidnapping, aggravated assault, and aggravated battery.
- Trial court did not err under O.C.G.A. § 16-1-7 in failing to merge convictions for aggravated assault and aggravated battery with a conviction for kidnapping with bodily injury as each crime required proof of at least one different element, and the state presented independent evidence to prove each individual crime as set out in the indictment. Evidence that the defendant pointed a gun at the victim and fired the gun at the floor near the victim, that the defendant used a wooden stick resembling a baseball bat to repeatedly hit the victim, and that the defendant hit and kicked the victim while the victim was tied up supported the three aggravated assault counts; aggravated battery in Counts 5 and 6 was established by evidence that the defendant broke the victim's nose, wrist, and shoulder and knocked out two teeth and by evidence that the defendant burned the victim's hand and caused the victim to be bitten by fire ants; and kidnapping with bodily injury was proven by evidence of injuries to the victim due to being bound by rope. Rouse v. State, 295 Ga. App. 61, 670 S.E.2d 869 (2008).
Aggravated battery and aggravated assault.
- Defendant's aggravated battery convictions did not merge because the counts of the indictment were predicated on different conduct; in order to prove one count of the indictment, the state had to show that the victim threw bleach in the victim's eyes, and in order to prove another count of the indictment, the state had to prove that the victim's finger was rendered useless because the finger was repeatedly struck with a hammer. Thomas v. State, 310 Ga. App. 404, 714 S.E.2d 37 (2011).
Separate judgments of conviction and sentences for aggravated assault, O.C.G.A. § 16-5-21(a)(2), and aggravated battery, O.C.G.A. § 16-5-24(a), were authorized because the evidence authorized a finding that the defendant committed an initial aggravated assault and, after a deliberate interval, committed an aggravated battery in a different location and on a different part of the victim's body; because each offense required proof of a fact that the other offense did not, the crimes did not merge legally or factually. Brockington v. State, 316 Ga. App. 90, 728 S.E.2d 753 (2012).
In an aggravated assault and aggravated battery case arising out of an incident in which the defendant twice, in quick succession, slashed the throat of the victim, the defendant's girlfriend, the trial court erred by failing to merge the defendant's convictions, and the court of appeals erroneously affirmed that decision because the record sufficiently established that the defendant's actions were part of a continuous criminal act, committed at the same time and place and inspired by the same criminal intent; and the offenses, which were based on the single criminal act of the defendant cutting the victim's throat with a knife, only differed with respect to the seriousness of the injury or risk of injury suffered by the victim. Regent v. State, 299 Ga. 172, 787 S.E.2d 217 (2016).
After the trial court merged the defendant's aggravated assault conviction into the defendant's armed robbery conviction, and then sentenced the defendant for armed robbery and aggravated battery, even if the trial court should have merged the defendant's aggravated battery and aggravated assault convictions, the end result would have been the same as the defendant would have been sentenced for aggravated battery rather than aggravated assault, given that the aggravated assault constituted the included offense; thus, any error by the trial court in failing to merge the defendant's aggravated battery and aggravated assault convictions was harmless and provided no basis for vacating the defendant's sentence. Epperson v. State, 340 Ga. App. 25, 796 S.E.2d 1 (2016).
Because the aggravated assault charge was based on the single criminal act of the defendant throwing acid on the victim, and differed from the aggravated battery counts only with respect to the specificity of the injury or risk of injury the victim actually suffered, the aggravated assault was included in the aggravated battery and should have merged. Fordham v. State, 352 Ga. App. 520, 835 S.E.2d 360 (2019), cert. denied, No. S20C0442, 2020 Ga. LEXIS 392 (Ga. 2020).
Aggravated battery counts merged.
- As to the two counts of aggravated battery, both counts were accomplished by the single act of throwing acid on the victim and, therefore, one count should have merged into the other. Fordham v. State, 352 Ga. App. 520, 835 S.E.2d 360 (2019), cert. denied, No. S20C0442, 2020 Ga. LEXIS 392 (Ga. 2020).
Aggravated battery and felony murder.
- After the trial court imposed a life sentence for felony murder predicated on aggravated battery and in addition imposed a 20-year concurrent term for the same aggravated battery, because the aggravated battery merged into the felony murder predicate, the trial court erred in sentencing the defendant on the aggravated battery. Smith v. State, 297 Ga. 667, 777 S.E.2d 453 (2015).
Because the crime of aggravated battery by shooting the victim with a gun was the underlying felony for the defendant's felony murder conviction, it should have merged with the felony murder conviction for sentencing purposes. Rodriguez v. State, Ga. , S.E.2d (Aug. 10, 2020).
Murder is not included within crime of possession of firearm during commission of felony. Wilson v. Zant, 249 Ga. 373, 290 S.E.2d 442, cert. denied, 459 U.S. 1092, 103 S. Ct. 580, 74 L. Ed. 2d 940 (1982).
Defendant's conviction for possession of a knife during the commission of a felony did not merge into the defendant's two convictions for malice murder for sentencing purposes. Hooks v. State, 284 Ga. 531, 668 S.E.2d 718 (2008), overruled on other grounds, Williams v. State, 287 Ga. 192, 695 S.E.2d 244 (2010).
Theft of numerous articles in one robbery.
- After the defendant hailed a taxi, pulled a knife and took the driver's money, placed the driver in the trunk of the taxi, drove the taxi for a short period of time, and stopped the taxi and took the driver's cell phone and wallet after hearing the driver talking, the defendant was guilty of robbery; however, the defendant could not be convicted of multiple robberies. Lewis v. State, 261 Ga. App. 273, 582 S.E.2d 222 (2003).
False imprisonment does not merge with armed robbery.
- Offense of false imprisonment requires proof of at least one additional fact which the offense of armed robbery does not. Consequently, under the "required evidence" test, a defendant's false imprisonment conviction did not merge into the defendant's armed robbery conviction. Simpson v. State, 293 Ga. App. 760, 668 S.E.2d 451 (2008).
Sequential assaults held to be two offenses, the first a completed crime when the second was perpetrated. Talley v. State, 164 Ga. App. 150, 296 S.E.2d 173 (1982), aff'd, 251 Ga. 42, 302 S.E.2d 355 (1983).
Aggravated assault with deadly weapon and with object.
- Defendant's convictions for aggravated assault with a deadly weapon and aggravated assault with an object, device, or instrument did not merge because the counts of the indictment requiring the state to prove that the defendant slashed the victim's neck with a sharp-edged instrument, hit the victim with a hammer and wrapped a cord around the victim's neck with the intent to murder were based on different conduct and merger of those convictions was not required. Thomas v. State, 310 Ga. App. 404, 714 S.E.2d 37 (2011).
Aggravated assault upon one person and malice murder of another not "included."
- Aggravated assault alleged in one count of indictment to have been committed on one person and malice murder alleged in another count of same indictment to have been committed upon another person are not included within meaning of O.C.G.A. § 16-1-7(a)(2). Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981).
Aggravated assault and malice murder.
- When the evidence used to prove that the defendant perpetrated the aggravated assault of the decedent - that the defendant fired a deadly weapon and wounded the victim - was used to establish that the defendant had committed malice murder, convictions for both aggravated assault and murder violated double jeopardy. Montes v. State, 262 Ga. 473, 421 S.E.2d 710 (1992).
When a prisoner was convicted of malice murder under O.C.G.A. § 16-5-1(a), a jury did not return a verdict on felony murder counts because O.C.G.A. § 16-1-7 prohibited a conviction for both offenses for the death of a single victim. Further, the defendant's crime of aggravated assault under O.C.G.A. § 16-5-21(a) also merged with the malice murder offense as it was a crime included within the greater offense. Newland v. Hall, 527 F.3d 1162 (11th Cir. 2008), cert. denied, 555 U.S. 1183, 129 S. Ct. 1336, 173 L. Ed. 2d 607 (2009).
Convictions against the defendant for both malice murder and aggravated assault were error under O.C.G.A. § 16-1-7(a)(1) as the aggravated assault was included within the malice murder conviction under O.C.G.A. § 16-1-6(1) because the same conduct established the commission of both offenses. Bell v. State, 284 Ga. 790, 671 S.E.2d 815 (2009).
Codefendant's conviction for aggravated assault had to be vacated because it merged as a matter of fact into the conviction for malice murder since the medical examiner who performed the autopsy of the victim testified that the cause of death was "gunshot wounds," did not identify any injury as the fatal shot, acknowledged the examiner could not testify as to the order in which the bullets entered the victim's body, and stated no single wound would have instantly stopped the victim; in the absence of evidence that one wound was fatal and was preceded by a "deliberate interval" in the series of shots fired and by the infliction of non-fatal wounds, there was no evidence to support the infliction of an aggravated assault separate and apart from the malice murder. Coleman v. State, 286 Ga. 291, 687 S.E.2d 427 (2009).
Trial court erred in sentencing the defendant on the count of the indictment charging the defendant with making an assault upon the victim with intent to murder in violation of O.C.G.A. § 16-5-21(a) after sentencing the defendant to life in prison for malice murder because the aggravated assault upon the victim and the murder of the victim occurred simultaneously; thus, the evidence used to prove the aggravated assault offense was established by the same, but not all, of the facts required to prove malice murder. Gresham v. State, 289 Ga. 103, 709 S.E.2d 780 (2011).
Defendant's conviction for aggravated assault should have been merged into a malice murder conviction pursuant to O.C.G.A. § 16-1-7(a)(1), based on the "required evidence" test, as the aggravated assault, as pled, did not require proof of a fact not required to have been proved in the malice murder. Culpepper v. State, 289 Ga. 736, 715 S.E.2d 155 (2011).
Defendant's conviction for aggravated assault of the victim merged into the conviction for malice murder of the victim because there was no evidence that the victim suffered a non-fatal injury prior to a deliberate interval in the attack and a fatal injury thereafter; the forensic pathologist who conducted the autopsy catalogued the victim's wounds as "chop injuries" that fractured the victim's skull and incapacitated the victim and were likely inflicted with a hatchet, punctures and superficial, deep, and very deep incisions and stab wounds that were inflicted by knives. Alvelo v. State, 290 Ga. 609, 724 S.E.2d 377 (2012).
Trial court erred when the court failed to merge the defendant's aggravated assault conviction into the defendant's conviction for felony murder because there was no evidence of a deliberate interval separating the infliction of any non-fatal wounds and any fatal wounds; instead, the undisputed evidence was that the wounds were delivered in quick succession. Sears v. State, 292 Ga. 64, 734 S.E.2d 345 (2012).
Malice murder and cruelty to children.
- Although both malice murder and cruelty to children required a malicious intent, O.C.G.A. §§ 16-5-1(a) and16-5-70(b), the fact that such intent supported an element in each crime did not warrant merging of the sentences when other mutually exclusive elements of the crimes remained, and the other elements of the two offenses had to be compared; malice murder, but not cruelty to children, required proof that defendant caused the death of another human being, § 16-5-1(a), and cruelty to children, but not malice murder, required proof that the victim was a child under the age of 18 who was caused cruel or excessive physical or mental pain, § 16-5-70(b). Each crime required proof of at least one additional element which the other did not and the crimes of malice murder and cruelty to children were not so closely related that multiple convictions were prohibited under other provisions of O.C.G.A. §§ 16-1-6 and16-1-7; accordingly, even if the same conduct established the commission of both malice murder and cruelty to children, the two crimes did not merge. Linson v. State, 287 Ga. 881, 700 S.E.2d 394 (2010).
Aggravated assault and felony murder.
- It was permissible for the state to indict defendant for both aggravated assault and felony murder, although defendant could not be convicted of both because the aggravated assault was an included offense in the felony murder. Campbell v. State, 269 Ga. 186, 496 S.E.2d 724 (1998).
Trial court erred in sentencing defendant on an aggravated assault conviction; as the aggravated assault was the underlying felony that formed the basis for a felony murder charge against defendant under O.C.G.A. § 16-1-7, defendant could not be sentenced on both the aggravated assault and felony murder when found guilty of both. Bolston v. State, 282 Ga. 400, 651 S.E.2d 19 (2007).
Because the crime of aggravated assault by shooting the victim with a gun was the underlying felony for the defendant's felony murder conviction, it should have merged for sentencing purposes; however, the conviction for aggravated assault with intent to rob, O.C.G.A. § 16-5-21(a)(1), did not merge into the felony murder conviction because the felony murder charge required proof that the defendant caused the victim's death and used a deadly weapon, O.C.G.A. §§ 16-5-1(c) and16-5-21(a)(2). Norris v. State, 302 Ga. 802, 809 S.E.2d 752 (2018).
Misdemeanor-manslaughter and felony murder.
- Since a misdemeanor can be an included crime in a felony, misdemeanor-manslaughter could be an included crime in felony murder. Carter v. State, 269 Ga. 420, 499 S.E.2d 63 (1998).
Voluntary manslaughter and felony murder.
- Because there is only one victim, to convict and sentence defendant for both voluntary manslaughter and felony murder would improperly subject defendant to multiple convictions and punishments for one crime. Smith v. State, 272 Ga. 874, 536 S.E.2d 514 (2000).
Aggravated assault with deadly weapon and aggravated assault with intent to murder.
- Since the facts adduced to prove the offense of aggravated assault with intent to murder were the same facts used to prove the offense of aggravated assault with a deadly weapon, as a matter of fact the latter had to be considered an offense included in the former. Mitchell v. State, 187 Ga. App. 40, 369 S.E.2d 487, cert. denied, 187 Ga. App. 908, 371 S.E.2d 432 (1988).
Aggravated assault conviction merged into a criminal attempt to commit murder conviction, where both counts were based on allegations that defendant had stabbed the victim with a knife. Kelley v. State, 201 Ga. App. 343, 411 S.E.2d 276 (1991).
Aggravated assault with deadly weapon and aggravated assault with intent to rob.
- Under O.C.G.A. § 16-1-7(a), a trial court erred in convicting and sentencing defendant for both aggravated assault with a deadly weapon and aggravated assault with the intent to rob, as those two offenses merged since the same facts were used to prove both offenses. Adcock v. State, 279 Ga. App. 473, 631 S.E.2d 494 (2006).
Voluntary manslaughter and aggravated assault.
- Convictions for the voluntary manslaughter of one victim and the aggravated assault of another did not merge as a matter of fact because only one shot was fired, striking both victims. Hall v. State, 235 Ga. App. 44, 508 S.E.2d 703 (1998).
Trial court erred in entering a judgment of conviction against the defendant for aggravated assault, O.C.G.A. § 16-5-21(a)(2), because that conviction should have been merged into the defendant's conviction for voluntary manslaughter, O.C.G.A. § 16-5-2(a); the defendant was charged in the indictment with voluntary manslaughter and aggravated assault for the stabbing of the victim, and the undisputed evidence at trial showed that the victim was stabbed one time in the chest, causing the victim's death. Muckle v. State, 307 Ga. App. 634, 705 S.E.2d 721 (2011).
Aggravated assault and armed robbery.
- Armed robbery and aggravated assault with a deadly weapon are separate crimes, and one is not included in the other. Neither prohibits a designated kind of conduct generally while the other prohibits a specific instance of such conduct. Roberts v. State, 228 Ga. 298, 185 S.E.2d 385 (1971).
Aggravated assault is not an included offense of armed robbery as defined by former Code 1933, § 26-506(a)(1), prohibiting multiple prosecutions for the same conduct. Harvey v. State, 233 Ga. 41, 209 S.E.2d 587 (1974) (see O.C.G.A. § 16-1-7(a)(1)).
Separate convictions for armed robbery and aggravated assault, although arising from same conduct, are not prohibited except where one crime is included in the other or where crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct. Kramer v. Hopper, 234 Ga. 395, 216 S.E.2d 119 (1975).
There was no violation of defendant's protection from double jeopardy in defendant having been convicted of and punished for both the aggravated assault and armed robbery of the victim, where the indictment charged armed robbery with the specific intent to commit a theft and the two acts were in fact separate though in close succession. Taylor v. State, 177 Ga. App. 624, 340 S.E.2d 263 (1986).
Entry of separate convictions for armed robbery and aggravated assault was barred, and conviction for the latter offense would have to be vacated, where the only aggravated assault shown by the evidence was that by which the commission of the armed robbery was effectuated. Young v. State, 177 Ga. App. 756, 341 S.E.2d 286 (1986).
Defendant's five convictions of aggravated assault merged with defendant's conviction on five counts of attempted armed robbery where defendant's act of pointing a pistol at bank employees when defendant announced intent to rob the bank was the act underlying both the convictions for attempted armed robbery and for aggravated assault. Hambrick v. State, 256 Ga. 148, 344 S.E.2d 639 (1986).
Aggravated assault was included in armed robbery as matter of fact, where the defendant initially pointed a pistol at the victim, which prompted the victim to open the cash drawer, and subsequently cocked the weapon after the victim told defendant that there was no money and fired virtually at the same moment as the victim was hitting the button to open the drawer. Moreland v. State, 183 Ga. App. 113, 358 S.E.2d 276 (1987).
Convictions and sentences for both armed robbery and aggravated assault were proper, where each offense charged was clearly supported by its own set of facts. Millines v. State, 188 Ga. App. 655, 373 S.E.2d 838 (1988).
Offenses of aggravated assault and robbery did not merge as a matter of law where, although the occurrences happened within a short span of time, the robbery had been completed at the time defendant fired the gun, and involved different actions and intents. Phelps v. State, 194 Ga. App. 493, 390 S.E.2d 899 (1990).
When the defendant's act of pointing a gun at one victim was the act underlying the armed robbery of a second victim, and the robbery was completed before the defendant committed an aggravated assault upon the second victim by pointing a gun at the victim, the crimes of armed robbery and aggravated assault upon the second victim did not merge. Perkins v. State, 216 Ga. App. 118, 453 S.E.2d 135 (1995).
Conviction for aggravated assault should have been vacated pursuant to the doctrine of merger. The only aggravated assault shown by the evidence was that by which the commission of armed robbery was effectuated. There having been no additional, gratuitous violence employed against the victim, it followed that the evidentiary basis for the aggravated assault conviction was "used up" in proving the armed robbery. Kelly v. State, 188 Ga. App. 362, 373 S.E.2d 63 (1988); Smith v. State, 193 Ga. App. 208, 387 S.E.2d 419 (1989); Jordan v. State, 218 Ga. App. 679, 462 S.E.2d 801 (1995).
Defendant's ineffective assistance of counsel claim based on counsel's failure to ask at sentencing that defendant's convictions for aggravated assault be merged into the armed robbery convictions was rejected as the convictions were merged at the motion for a new trial hearing. Buchanan v. State, 273 Ga. App. 174, 614 S.E.2d 786 (2005).
Since the defendant was indicted for aggravated assault for pointing a handgun at a victim, which was also a substantial step toward commission of the armed robbery, the trial court properly merged the defendant's aggravated assault conviction with the attempted armed robbery conviction. McKinney v. State, 274 Ga. App. 32, 619 S.E.2d 299 (2005).
As the armed robberies and aggravated assaults with which the defendant was charged were committed against different victims, the crimes did not merge as a matter of law or fact. Verdree v. State, 299 Ga. App. 673, 683 S.E.2d 632 (2009).
Because the assault element of a defendant's aggravated assault with intent to rob conviction under O.C.G.A. § 16-5-21(a) was contained within the "use of an offensive weapon" element of armed robbery under O.C.G.A. § 16-8-41, and both crimes shared the "intent to rob" element, the defendant's aggravated assault conviction merged into the armed robbery conviction. Lucky v. State, 286 Ga. 478, 689 S.E.2d 825 (2010).
Defendant's sentence for armed robbery, O.C.G.A. § 16-8-41(a), and aggravated assault, O.C.G.A. § 16-5-21(a)(2), was not void as a result of the trial court's failure to merge the convictions because the convictions did not merge for sentencing purposes since the convictions did not involve the same conduct; the crime of armed robbery was complete when the defendant entered a restaurant and, with the use of a handgun, demanded and took money from a waitress, and, after completion of the armed robbery, the defendant pushed the gun against the waitress's neck and asked whether the waitress wanted to die, which formed the basis of the aggravated assault conviction. McKenzie v. State, 302 Ga. App. 538, 691 S.E.2d 352 (2010).
Trial court erred in failing to merge aggravated assault, O.C.G.A. § 16-5-21(a)(2), and armed robbery, O.C.G.A. § 16-8-41, counts because the state relied on the same act of assault to establish defendant's guilt of aggravated assault and armed robbery, and although the state could have been able to indict the defendant for aggravated assault based on conduct separate and distinct from the defendant's act of hitting the victim in the head with a baseball bat, the indictment specifically charged the defendant with the offense of aggravated assault; while armed robbery requires proof of additional facts, like aggravated assault with intent to rob, aggravated assault under § 16-5-21(a)(2) does not require proof of a fact not required to establish armed robbery. Taylor v. State, 304 Ga. App. 395, 696 S.E.2d 686 (2010).
Because defendant's conviction under O.C.G.A. § 16-8-41(a) for armed robbery could be sustained based upon defendant's conduct with a shotgun, and because defendant's conviction under O.C.G.A. § 16-5-21(a)(2) for aggravated assault could be sustained based upon defendant's conduct with a knife, pursuant to O.C.G.A. § 16-1-7(a), the two convictions did not merge. Johnson v. State, 305 Ga. App. 838, 700 S.E.2d 726 (2010).
Defendant's aggravated assault conviction should have merged into defendant's armed robbery conviction for sentencing purposes because the defendant's use of the defendant's handgun against the victim was the same conduct in both offenses, designed to immobilize the victim while the victim was robbed. The aggravated assault was established by proof of the same or less than all the facts required to establish the commission of the armed robbery. Herrera v. State, 306 Ga. App. 432, 702 S.E.2d 731 (2010).
Defendant's convictions for armed robbery and aggravated assault did not merge because each crime required proof of conduct that the other did not; the armed robbery as charged in the indictment required proof of intent to rob and that the victim's wallet was taken, while the aggravated assaults required proof that the victim's neck was slashed with a sharp weapon. Thomas v. State, 310 Ga. App. 404, 714 S.E.2d 37 (2011).
Trial court erred in failing to merge the defendant's conviction for aggravated assault with a deadly weapon, O.C.G.A. § 16-5-21(a)(2), into the defendant's conviction for armed robbery conviction, O.C.G.A. § 16-8-41(a), because the act of using an offensive weapon for the purposes of committing an armed robbery was the legal equivalent of assault for the purposes of committing an aggravated assault; it is not determinative under the merger analysis that the desired object of a defendant's armed robbery was something other than that which he or she actually took, but instead, what dictates merger is the fact that both crimes for which the defendant was convicted were predicated upon the same conduct. Hall v. State, 313 Ga. App. 66, 720 S.E.2d 181 (2011).
Because the victim was still being pistol whipped while the men asked the victim what the victim had and took the victim's wallet and cell phone, the robbery by use of a handgun was completed at the same place and approximately the same time as the aggravated assault with a handgun; thus, the timing of the offenses of armed robbery and aggravated assault with intent to rob did not preclude their merger. Curtis v. State, 330 Ga. App. 839, 769 S.E.2d 580 (2015).
Because the "assault" element of aggravated assault with intent to rob is contained within the "use of an offensive weapon" element of armed robbery and both crimes share the "intent to rob" element, there is no element of aggravated assault with intent to rob that is not contained in armed robbery, and the offenses merge. Curtis v. State, 330 Ga. App. 839, 769 S.E.2d 580 (2015).
Trial court erred in failing to merge the defendant's convictions for attempted armed robbery and aggravated assault because the aggravated assault charge did not require proof of any fact that was not also required to prove the attempted armed robbery as that offense could have been proved under the indictment in the current case; and the conduct involved in the attempted armed robbery count and aggravated assault count arose out of the same act or transaction as both counts alleged that the defendant pointed the gun at the victim, and the victim indicated that the gun was directed at the victim one time. Wilson v. State, 344 Ga. App. 285, 810 S.E.2d 303 (2018).
Aggravated assault, armed robbery and felony murder as separate crimes.
- When one person was the victim of aggravated assault, and another victim was killed, and both crimes occurred during an armed robbery, separate crimes of aggravated assault, armed robbery, and felony murder were committed. Foster v. State, 230 Ga. 666, 198 S.E.2d 847 (1973).
Aggravated assault and robbery.
- Aggravated assault conviction merged with robbery conviction where victim was placed in fear of receiving bodily injury before the victim's money was taken. Luke v. State, 171 Ga. App. 201, 318 S.E.2d 833 (1984).
Aggravated assault and aggravated battery.
- Facts adduced to support the aggravated assault charge were the same facts used to support the aggravated battery charge as the crimes were set forth in the indictment with the additional element being the victim's loss of use of the victim's eyes. Because the defendant could not be convicted for both crimes, the conviction for the included offense, the assault, was vacated. Mills v. State, 187 Ga. App. 79, 369 S.E.2d 283 (1988).
When the defendant shot the victim twice when the victim first turned to see the defendant, then struggled with the victim and knocked the victim down, and the defendant stood over the victim and shot the victim in the neck, the trial court did not commit error when the court convicted and sentenced the defendant for both offenses since the prosecution could well have proved any aggravated battery without introducing any evidence of the first two shots. White v. Hardegree, 190 Ga. App. 275, 378 S.E.2d 877, cert. denied, 190 Ga. App. 899, 378 S.E.2d 877 (1989).
Trial court erred in failing to merge defendant's aggravated assault with the aggravated battery conviction inasmuch as the same facts were used to support the indictments on both offenses. Davis v. State, 209 Ga. App. 187, 433 S.E.2d 366 (1993); Riden v. State, 226 Ga. App. 245, 486 S.E.2d 198 (1997).
When the evidence does not demonstrate that the aggravated assault and the aggravated battery were based on the "same conduct" within the contemplation of O.C.G.A. § 16-1-7, the separate convictions for these offenses may stand. Knight v. State, 190 Ga. App. 87, 378 S.E.2d 373 (1989); Malone v. State, 226 Ga. App. 185, 486 S.E.2d 57 (1997); Wright v. State, 243 Ga. App. 167, 532 S.E.2d 724 (2000).
Although the evidence that defendant intentionally stabbed a man in the side with a knife, causing a wound that required 100 stitches and that left a scar, was sufficient to support convictions for both aggravated assault under O.C.G.A. § 16-5-21(a)(2) and aggravated battery under O.C.G.A. § 16-5-24(a), the defendant could not be convicted of both crimes as that conviction was prohibited by O.C.G.A. § 16-1-7(a)(1) since the aggravated assault was included in the aggravated battery and arose out of the same conduct; thus, the aggravated assault conviction was vacated. Townsend v. State, 256 Ga. App. 837, 570 S.E.2d 47 (2002).
Defendant's aggravated assault and aggravated battery convictions under O.C.G.A. §§ 16-5-21(a) and16-5-24(a) did not merge under O.C.G.A. § 16-1-7(a), although both stemmed from the same act. The aggravated assault charge required proof that the defendant attempted to commit a violent injury with the intent to murder using a deadly weapon, while the aggravated battery charge required proof that the defendant maliciously caused bodily harm to the victim by rendering a member of the victim's body useless; thus, the offenses were distinct with each requiring proof of a fact which the other did not. Robbins v. State, 293 Ga. App. 584, 667 S.E.2d 684 (2008).
Actions of defendant and the codefendant in beating the victim, in breaking the victim's wrist and shoulder, and in causing burns to the victim's hands, although occurring sequentially, constituted separate offenses, as each was established by proof of different facts. Thus, the evidence did not demonstrate that the aggravated assault and the aggravated battery were based on the same conduct within the contemplation of O.C.G.A. § 16-1-7. Wilkinson v. State, 298 Ga. App. 190, 679 S.E.2d 766 (2009).
Trial court did not err in refusing to merge the defendant's convictions for aggravated assault and aggravated battery, O.C.G.A. §§ 16-5-21 and16-5-24, because the offenses were established by proving different facts; the defendant was found guilty of aggravated assault because there was evidence that the defendant assaulted the victim with a screwdriver, and the defendant was found guilty of aggravated battery because the victim's left lung was nonfunctional for a period of time due to the stab wound. Works v. State, 301 Ga. App. 108, 686 S.E.2d 863 (2009), cert. denied, No. S10C0458, 2010 Ga. LEXIS 251 (Ga. 2010).
Defendant waived the issue of whether the defendant's convictions for aggravated assault and aggravated battery in slitting the defendant's girlfriend's throat merged by pleading guilty to both offenses; moreover, the offenses did not merge because the assault charge accused the defendant of seriously injuring the victim and the battery charge accused the defendant of disfiguring her. Regent v. State, 306 Ga. App. 616, 703 S.E.2d 81 (2010).
Defendant's aggravated battery and aggravated assault convictions merged because the counts of the indictment were based on the same conduct of hitting the victim with a hammer, resulting in serious bodily injury to the victim's hand, and one of the victim's fingers being rendered useless when the victim placed the victim's hands up in an attempt to protect the victim's head; the aggravated assault was a lesser included offense of the aggravated battery because the aggravated assault required proof of a less serious injury than the aggravated battery. Thomas v. State, 310 Ga. App. 404, 714 S.E.2d 37 (2011).
Aggravated assault and family violence battery.
- Aggravated assault under O.C.G.A. § 16-5-21 with fists only and family violence battery under O.C.G.A. § 16-5-23.1(f) with fists and a bottle upon the defendant's then live-in girlfriend were not required to be merged under O.C.G.A. § 16-1-7(a) because there were two separate incidents separated by the girlfriend's visit to a store and because the aggravated assault did not require the use of a bottle. Collins v. State, 277 Ga. App. 381, 626 S.E.2d 513 (2006).
Aggravated assault and mutiny.
- When the facts adduced to support an aggravated assault charge were the same facts used to support a mutiny charge, as the crimes were set forth in the indictment, then the aggravated assault charge had to be considered an offense included within the mutiny charge; because O.C.G.A. § 16-1-7 forbids conviction for both crimes, the conviction for the included offense, aggravated assault, was vacated. Green v. State, 170 Ga. App. 594, 317 S.E.2d 609 (1984).
Crimes of aggravated assault on an officer and obstruction of the same officer were included in each other and defendant could only be convicted of one; the same conduct that proved the aggravated assault proved the obstruction. Priester v. State, 249 Ga. App. 594, 549 S.E.2d 429 (2001).
Trial court erred in failing to merge the defendant's convictions for four counts of obstruction of a police officer into the convictions for four counts of aggravated assault on a police officer because each count of the crime of obstruction was established by proof of the same or less than all the facts required to establish each count of the crime of aggravated assault; the state conceded that the trial court erred in failing to merge the convictions for obstruction into the convictions for aggravated assault on a police officer. Dobbs v. State, 302 Ga. App. 628, 691 S.E.2d 387 (2010).
Aggravated battery and robbery.
- Defendant could not be sentenced on conviction for aggravated battery since that crime merged with defendant's conviction for robbery where the aggravated battery conviction was based on the identical acts of violence through which the defendant effected the taking of the victim's purse. Kinney v. State, 234 Ga. App. 5, 505 S.E.2d 553 (1998).
Trial court did not err in failing to merge the defendant's aggravated battery conviction into the defendant's armed robbery conviction because the taking of the victim's property was not a fact required to establish the aggravated battery offense, and depriving the victim of a member of the victim's body was not a fact required to establish the armed robbery offense; and, while the aggravated battery and armed robbery were based on the same criminal transaction, aggravated battery and armed robbery did not simply prohibit different degrees of injury or risk of injury; rather, the two crimes prohibited entirely different categories of injury - depriving the victim of a member of the victim's body versus depriving the victim of property. Epperson v. State, 340 Ga. App. 25, 796 S.E.2d 1 (2016).
Aggravated battery conviction not bar to rape and robbery charges.
- Since defendant's act constituting aggravated battery was also used to prove the element of force essential to charges of rape and robbery, but there was evidence indicating use of force independent of the battery, O.C.G.A. § 16-1-7 did not bar prosecution on all three offenses. McCulligh v. State, 169 Ga. App. 717, 314 S.E.2d 724 (1984).
Simple battery and rape.
- When the same impermissible touching - hitting and slapping which constituted simple battery - also supplied the element of force necessary for conviction of rape, the battery merged into rape, thereby requiring reversal of appellant's simple battery conviction. Johnson v. State, 195 Ga. App. 723, 394 S.E.2d 586 (1990).
Simple battery and DUI.
- Simple battery charge did not "arise from the same conduct" as a driving under the influence (DUI) charge, so as to come within the prohibition of the multiple prosecution bar, where the battery occurred 40 minutes after defendant's arrest for DUI and at a different location, the officer who made the DUI arrest was not the same person allegedly struck by defendant, and the DUI involved defendant's operation of a motor vehicle, but the battery did not. State v. Littler, 201 Ga. App. 527, 411 S.E.2d 522 (1991).
Rape and assault with intent to rape.
- Offense of rape includes the lesser offense of assault with intent to rape. Padgett v. State, 205 Ga. App. 576, 423 S.E.2d 411 (1992).
Simple assault did not merge with aggravated assault with intent to rape.
- There was no merger of offenses as a result of defendant's conviction of simple assault and aggravated assault with the intent to rape, where there was sufficient evidence of two separate assaults, the simple assault having been a sequential reaction to the victim's resistance to the charged sexual assault. Watson v. State, 178 Ga. App. 778, 344 S.E.2d 667 (1986).
Simple assault did not merge with battery.
- Trial court did not err in failing to merge the defendant's convictions for simple assault and battery because the convictions were based upon different conduct as the first cut to the victim's forehead caused reasonable apprehension of immediate violent injury supporting the simple assault conviction, and the victim's remaining injuries caused by the knife wounds that followed supported a finding of visible bodily harm to support the battery conviction and each crime required proof of a fact that the other did not. Watts v. State, 321 Ga. App. 289, 739 S.E.2d 129 (2013).
Merger of rape and incest.
- Contrary to the defendant's argument, the trial court did not err in failing to merge a conviction for incest, O.C.G.A. § 16-6-22, in one count into a conviction for rape, O.C.G.A. § 16-6-1, in another count, despite the fact that both counts were based on the same act of sexual intercourse because the defendant's conduct established the commission of more than one crime; to establish the crime of rape, the state proved that the defendant had carnal knowledge of the victim, forcibly and against the victim's will, but to establish incest, it was also necessary to prove that the victim had a certain relation to the defendant. Thus, incest was not established by proof of the same or less than all the facts required to establish proof of rape. Dew v. State, 292 Ga. App. 631, 665 S.E.2d 715 (2008).
Defendant's rape and incest convictions did not merge because each crime required proof of an additional fact that the other did not because, to establish the crime of rape, the state had to prove that the defendant lacked consent, which was not an element of incest; and, to establish the crime of incest, the state had to prove that the victim was of a certain relation to the defendant, which was not an element of rape; thus, the trial court did not err in sentencing the defendant for both rape and incest. Tinson v. State, 337 Ga. App. 83, 785 S.E.2d 914 (2016).
Molestation.
- State did not err when it charged defendant with four counts of molestation arising out of the same transaction where the indictment alleged four separate immoral or indecent acts committed by defendant with the intent to arouse or satisfy defendant's own sexual desires; while O.C.G.A. § 16-1-7(a) prohibited multiple convictions for the same conduct, it also provided that when the same conduct of an accused could establish the commission of more than one crime, the accused could be prosecuted for each crime. Lunsford v. State, 260 Ga. App. 818, 581 S.E.2d 638 (2003).
False imprisonment as lesser included offense of kidnapping.
- After the defendant had been convicted of kidnapping with bodily injury, subsequent charges of false imprisonment, arising out of the same set of facts, were barred by former jeopardy under the "required evidence test" because false imprisonment was a lesser included offense of kidnapping with bodily injury. Sallie v. State, 216 Ga. App. 502, 455 S.E.2d 315 (1995).
Rape and kidnapping with bodily injury as included offenses.
- When rape was a separate crime arising out of the same transaction under former Code 1933, § 26-506(a), evidence of such rape could not be used as a basis for separate convictions of both rape and kidnapping with bodily injury to the victim. Allen v. State, 233 Ga. 200, 210 S.E.2d 680 (1974), overruled on other grounds by Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006).
In a criminal trial, the offenses of kidnapping with bodily harm and rape were not merged where, under the facts, neither offense was included in the other as a matter of fact nor as a matter of law. Turner v. State, 194 Ga. App. 878, 392 S.E.2d 256 (1990).
Rape and kidnapping with bodily injury.
- Double jeopardy attached where the state sought to prosecute defendant for rape and sodomy in one county based upon the same facts and upon the same actual evidence which was used to convict defendant for kidnapping with bodily injury in another county. State v. Sallie, 206 Ga. App. 732, 427 S.E.2d 11 (1992).
Because the proof establishing the crime of rape did not use up the proof establishing the crime of kidnapping with bodily injury, the crimes did not merge; accordingly, the trial court did not err by refusing to merge two of defendant's kidnapping with bodily injury convictions with two of defendant's rape convictions. Collins v. State, 267 Ga. App. 784, 600 S.E.2d 802 (2004).
Rape and kidnapping.
- Trial court did not err in refusing to merge the kidnapping charge into rape charge, where the evidence authorized the jury to find that defendant, armed with a pistol, forced his way into the victim's car and drove off with the victim to a secluded area where he raped and beat her and moved to another location and again raped and abused the victim, and then drove away with her car and the property in it, leaving the naked victim behind. Clark v. State, 166 Ga. App. 366, 304 S.E.2d 494 (1983).
When the victim was kidnapped at knifepoint and then raped at another location, the two offenses were separate and did not merge; and since there was also evidence that, subsequent to completing the offense of rape, defendant again threatened the victim with the knife, these two offenses were separate and did not merge as a matter of fact. Edmonson v. State, 212 Ga. App. 449, 442 S.E.2d 300 (1994).
Kidnapping and aggravated sodomy.
- Kidnapping and aggravated sodomy are not included offenses as a matter of law and, even though they may be included as a matter of fact, where the same evidence was not used to prove both crimes, the trial court did not err by refusing to find a merger. Hardy v. State, 210 Ga. App. 811, 437 S.E.2d 790 (1993).
Kidnapping with bodily injury and malice murder.
- Kidnapping with bodily injury is not included in malice murder as a matter of law. Tucker v. State, 244 Ga. 721, 261 S.E.2d 635 (1979), cert. denied, 445 U.S. 972, 100 S. Ct. 1666, 64 L. Ed. 2d 250 (1980).
Malice murder and kidnapping are not same offense for double jeopardy purposes even though they involve same transaction and considerably overlap each other factually. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir.), cert. denied, 454 U.S. 1035, 102 S. Ct. 575, 70 L. Ed. 2d 480 (1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).
Kidnapping with bodily injury and murder.
- Murder and kidnapping with bodily injury are not included crimes as a matter of law. Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 667 (1978).
Murder and kidnapping with bodily injury are not included as a matter of fact under O.C.G.A. § 16-1-6(1) since these crimes have distinct elements. Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 667 (1978).
Merger of battery and kidnapping with bodily injury.
- In a prosecution for kidnapping with bodily injury and battery, use of the same evidence to prove that defendant perpetrated battery as proof of the offense of kidnapping with bodily injury required reversal of defendant's conviction and sentence for battery. Holmes v. State, 229 Ga. App. 671, 494 S.E.2d 560 (1998).
Merger of aggravated assault and kidnapping with bodily injury.
- When aggravated assault conviction is included in kidnapping with bodily injury count, the former conviction and sentence will be vacated because there exists a merger of offenses as a matter of fact. Thornton v. State, 144 Ga. App. 595, 241 S.E.2d 478 (1978).
When one offense is established by the same but less than all of the facts required to establish another offense, the first merges into the second as a matter of fact; aggravated assault is a lesser included offense of, and merges with, the crime of kidnapping with bodily injury, and a trial court erred by failing to merge defendant's aggravated assault conviction into defendant's kidnapping with bodily injury conviction. Bailey v. State, 269 Ga. App. 262, 603 S.E.2d 786 (2004).
Aggravated stalking and domestic violence orders.
- State may not prosecute a defendant for aggravated stalking based upon the same set of facts previously used to prosecute the same defendant for violation of a domestic violence order. Kinney v. State, 223 Ga. App. 418, 477 S.E.2d 843 (1996).
Hijacking and armed robbery.
- O.C.G.A. § 16-5-44.1(d) supersedes the double jeopardy provision contained in O.C.G.A. § 16-1-7(a). Thus, the trial court did not err in refusing to merge the defendant's armed robbery and hijacking convictions. Boykin v. State, 264 Ga. App. 836, 592 S.E.2d 426 (2003).
Carjacking and armed robbery.
- Defendant's prosecution for a car hijacking was not barred by O.C.G.A. § 16-1-7(b) as the car hijacking and the armed robbery did not arise from the same conduct because the car hijacking incident and the armed robbery incident occurred three days apart, took place at different locations, and involved different victims. Syas v. State, 273 Ga. App. 161, 614 S.E.2d 803 (2005).
Separate convictions for armed robbery and hijacking a motor vehicle did not violate the state and federal prohibitions against double jeopardy, as the latter constituted a separate offense warranting a separate sanction under Georgia law, thus warranting an additional punishment. Dumas v. State, 283 Ga. App. 279, 641 S.E.2d 271 (2007).
Defendant's argument that separate convictions for armed robbery and hijacking a motor vehicle violated prohibitions against double jeopardy was properly rejected because O.C.G.A. § 16-5-44.1(d) expressly provided that hijacking a motor vehicle was a separate offense, superseding the statutory double jeopardy provisions of O.C.G.A. § 16-1-7. Souder v. State, 301 Ga. App. 348, 687 S.E.2d 594 (2009), cert. denied, No. S10C0536, 2010 Ga. LEXIS 343 (Ga. 2010).
Sequential offenses not inclusive.
- Kidnapping with bodily injury and aggravated battery occurred sequentially, and the former was completed when the latter was perpetrated. Robinson v. State, 210 Ga. App. 175, 435 S.E.2d 466 (1993).
Aggravated stalking.
- Prosecution of the defendant in Fulton County for aggravated stalking was not barred by defendant's previous conviction in Cobb County for aggravated stalking of the same victim, notwithstanding that the Cobb County conviction was introduced into evidence in the Fulton County prosecution in order to show a pattern of harassing and intimidating behavior. Daker v. State, 248 Ga. App. 657, 548 S.E.2d 354 (2001), cert. denied, 535 U.S. 1085, 122 S. Ct. 1977, 152 L. Ed. 2d 1035 (2002).
Defendant's convictions for two counts of aggravated stalking based on the defendant's following and contacting the victim did not merge for sentencing purposes because there was sufficient evidence from which the jury could find that the defendant, in violation of a protective order, both followed the victim to a hotel and then contacted the victim; the act of following was complete when the defendant arrived at the premises of the hotel because at that time the defendant violated the protective order by coming within 500 feet of a place where the victim was residing. Louisyr v. State, 307 Ga. App. 724, 706 S.E.2d 114 (2011).
Aggravated assault and kidnapping.
- Trial court did not err in denying defendant's motion to correct an illegal sentence, pursuant to O.C.G.A. §§ 16-1-6 and16-1-7, as defendant's convictions for aggravated assault and kidnapping, in violation of O.C.G.A. §§ 16-5-21 and16-5-40(a), respectively, did not merge as a matter of law, as only aggravated assault and kidnapping with bodily injury merged as a matter of law; further, the crimes did not merge as a matter of fact, as they were based on separate and distinct facts, and due to the timing of defendant's actions during the incident, the separate convictions were proper. Walker v. State, 275 Ga. App. 862, 622 S.E.2d 64 (2005).
Trial court did not err in declining to merge kidnapping counts with aggravated assault counts because the aggravated assault involved different conduct from the kidnapping and was completed prior thereto and, thus, the same conduct did not establish the commission of both offenses; even if the kidnapping counts involved the same conduct as the aggravated assault, neither was included in the other after application of the "required evidence" test. Jones v. State, 290 Ga. 670, 725 S.E.2d 236 (2012).
Simple assault and kidnapping.
- Trial court did not err in declining to merge a defendant's convictions for assault and kidnapping with bodily injury because assault under O.C.G.A. § 16-5-20(a)(2) was established by evidence that the victim was placed in reasonable apprehension of immediately receiving a violent injury when defendant told the victim the defendant had a gun, and kidnapping with bodily injury in violation of O.C.G.A. § 16-5-40(a), on the other hand, was established by evidence that defendant abducted and held the victim against the victim's will in the victim's car, driving from one location to another, during which time the victim received bodily injuries. Walker v. State, 306 Ga. App. 16, 701 S.E.2d 523 (2010).
Aggravated assault conviction does not merge into robbery by intimidation conviction.
- As the offense of aggravated assault, O.C.G.A. § 16-5-21(a)(1), required proof of at least one additional fact which the offense of robbery by intimidation, O.C.G.A. § 16-8-41(a), did not, under the "required evidence" test of O.C.G.A. § 16-1-7, a defendant's aggravated assault conviction did not merge into the defendant's robbery by intimidation conviction. Elamin v. State, 293 Ga. App. 591, 667 S.E.2d 439 (2008).
Prosecution for kidnapping and escape. See Bailey v. State, 146 Ga. App. 774, 247 S.E.2d 588 (1978).
Prosecution for felony murder and kidnapping.
- Once the state tried and convicted petitioner for kidnapping, it would be barred from prosecuting petitioner for felony murder only if underlying felony upon which that prosecution was based were that same kidnapping. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir.), cert. denied, 454 U.S. 1035, 102 S. Ct. 575, 70 L. Ed. 2d 480 (1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).
Incest and child molestation.
- Trial court correctly determined that child molestation did not merge with separate act of incestuous sexual intercourse. King v. State, 209 Ga. App. 529, 433 S.E.2d 722 (1993).
Aggravated child molestation and rape.
- Entering separate convictions and sentences for aggravated child molestation and rape was error where the evidence established that the injuries sustained by the victim as a result of the rape were the same injuries as those alleged as the basis for the charge of aggravated child molestation. Caldwell v. State, 263 Ga. 560, 436 S.E.2d 488 (1993).
Because defendant's aggravated child molestation and rape convictions were based on separate and distinct sexual acts and different conduct, those convictions could not have been included offenses under O.C.G.A. §§ 16-1-6 and16-1-7; accordingly, defendant's pro se motion to vacate the sentence as void was properly denied. Reed v. State, 297 Ga. App. 850, 678 S.E.2d 560 (2009).
Child molestation as included offense of rape.
- Accused may be prosecuted for both rape and child molestation based upon same conduct, but he may not be convicted of both. Lamar v. State, 243 Ga. 401, 254 S.E.2d 353, appeal dismissed, 444 U.S. 803, 100 S. Ct. 23, 62 L. Ed. 2d 16 (1979).
Child molestation and statutory rape.
- Trial court erred when it convicted defendant of child molestation because facts which were used to prove child molestation were the same facts which proved statutory rape, and the court should have merged the child molestation conviction with the statutory rape conviction. Dorsey v. State, 265 Ga. App. 404, 593 S.E.2d 945 (2004).
Child molestation and aggravated sodomy.
- Because the defendant relentlessly subjected his minor stepdaughter to countless episodes of molestation by performing acts of sodomy, the crimes of aggravated sodomy and child molestation were not merged since there were multiple, separate acts as a basis for each charge. McCollum v. State, 177 Ga. App. 40, 338 S.E.2d 460 (1985).
Child molestation under O.C.G.A. § 16-6-4(a) was not a lesser included offense of aggravated sodomy under O.C.G.A. § 16-6-2, where the defendant was charged with two different specific sexual acts at different times on the same day. Hill v. State, 183 Ga. App. 654, 360 S.E.2d 4 (1987).
Child molestation and aggravated sodomy are legally distinct, and when the indictment for each offense is based on separate and distinct acts, the offenses do not merge. Howard v. State, 200 Ga. App. 188, 407 S.E.2d 769, cert. denied, 1991 Ga. LEXIS 542 (Ga. 1991), subsequent appeal, 210 Ga. App. 716, 437 S.E.2d 483 (1993), habeas corpus denied, 266 Ga. 771, 470 S.E.2d 678 (1996), recons. denied; overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019), cert. denied, 200 Ga. App. 896, 407 S.E.2d 769 (1991), cert. denied, 1991 Ga. LEXIS 542 (Ga. 1991), subsequent appeal, 210 Ga. App. 716, 437 S.E.2d 483 (1993), habeas corpus denied, 266 Ga. 771, 470 S.E.2d 678 (1996), recons. denied; overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019).
Aggravated child molestation charge and the aggravated sodomy charge in each of the two indictments at issue were both based upon the same act of sodomy since only two of the three incidents involved an act of sodomy and, in those two incidents, each involved only one act of sodomy. Dobbins v. State, 262 Ga. 161, 415 S.E.2d 168 (1992).
Convictions for separate acts of aggravated sodomy and aggravated child molestation did not merge for sentencing purposes. Braddy v. State, 205 Ga. App. 424, 422 S.E.2d 260 (1992).
Child molestation and aggravated sodomy should have been merged for conviction and sentencing where a single act of oral sodomy, used to prove aggravated sodomy, also was the evidentiary basis for the charge of aggravated child molestation. Wyatt v. State, 222 Ga. App. 604, 475 S.E.2d 651 (1996).
Attempted aggravated child molestation and attempted aggravated sodomy.
- In the defendant's trial for charges for going to a meeting place with the purpose of having sex with fictitious brothers, ages 12 and 5, the trial court erred in merging attempted aggravated child molestation into attempted aggravated sodomy convictions because the offenses did not merge in either direction under O.C.G.A. §§ 16-1-6 and16-1-7. Each required proof of an element the other did not, and the two crimes were equally serious. Metcalf v. State, 349 Ga. App. 408, 825 S.E.2d 909 (2019).
Child molestation and aggravated sexual battery.
- Defendant's child molestation conviction under O.C.G.A. § 16-6-4(a) did not merge under O.C.G.A. §§ 16-1-6(1) and16-1-7(a) into the defendant's aggravated sexual battery conviction under O.C.G.A. § 16-6-22.2 as the child molestation charge required proof that the defendant committed an immoral and indecent act with the intent to arouse and satisfy the defendant's sexual desires, whereas the aggravated sexual battery charge did not, and the aggravated sexual battery charge required proof of penetration, whereas the child molestation charge did not. Gaston v. State, 317 Ga. App. 645, 731 S.E.2d 79 (2012).
Aggravated child molestation conviction merged into the aggravated sodomy conviction as a matter of fact because defendant's single act of anal sodomy was necessary to prove the aggravated sodomy count of the indictment, so that there was no remaining evidence upon which to base defendant's conviction for an additional count of aggravated child molestation. Heidler v. State, 273 Ga. 54, 537 S.E.2d 44 (2000), cert denied, 532 U.S. 1029, 121 S. Ct. 1979, 149 L. Ed. 2d 771 (2001).
Aggravated child molestation and false imprisonment.
- Trial court was not required to merge the defendant's false imprisonment and aggravated child molestation convictions since the false imprisonment and aggravated child molestation convictions could be sustained based on different conduct, therefore, separate convictions were appropriate. Specifically, the indictment averred that the defendant committed false imprisonment by unlawfully detaining the victim in violation of the victim's personal liberty and committed aggravated child molestation by forcing the victim to perform oral sex on him and there was evidence that on one occasion, the defendant locked the victim in the home and would not let the victim leave and, as to the aggravated child molestation conviction, there was evidence that the defendant forced the victim to perform oral sex on the defendant on repeated occasions spanning several years. Metts v. State, 297 Ga. App. 330, 677 S.E.2d 377 (2009).
Child molestation and cruelty to children.
- Trial court did not err in failing to merge the defendant's convictions for child molestation, O.C.G.A. § 16-6-4(a), and cruelty to children, O.C.G.A. § 16-5-70, because each crime required proof of at least one additional element that the other did not, and thus, even if the same conduct established the commission of both child molestation and cruelty to children, the two crimes did not merge; cruelty to children, but not child molestation, requires proof that the victim was a child under the age of 18 who was caused cruel or excessive physical or mental pain, O.C.G.A. § 16-5-70(b), and in contrast, child molestation, but not cruelty to children, requires proof that the victim was under 16 years of age and that the defendant performed an immoral or indecent act upon or in the presence of the child for the purpose of arousing or satisfying the defendant's or the child's sexual desires under O.C.G.A. § 16-6-4(a). Chandler v. State, 309 Ga. App. 611, 710 S.E.2d 826 (2011).
Multiple conviction for cruelty to children.
- Trial court erred in failing to merge Counts 3 and 4, which alleged two counts of cruelty to children in the second degree as to the first child, for sentencing purposes as each of the counts asserted that the defendant's different acts caused a different type of harm, and each required different evidence to prove harm, because Count 3 charged the defendant with causing excessive mental pain by confining the child in a room for months without sufficient mental stimulation and social interaction; and Count 4 charged the defendant with causing cruel and excessive physical pain by failing to provide the child with physical exercise. Wimbush v. State, 345 Ga. App. 54, 812 S.E.2d 489 (2018).
Cruelty to children and use of fighting words.
- Evidence authorized a jury charge on the offense of "fighting words," where defendant schoolteacher was indicted for battery and cruelty to children, and the proof tracked the indictment which set forth words defendant said to a student which would fall within the parameter of those forbidden by the "fighting words" statute. Shuler v. State, 195 Ga. App. 849, 395 S.E.2d 26 (1990).
No merger of aggravated battery and cruelty to children.
- Aggravated battery and cruelty to children each requires proof of at least one additional element which the other does not, and the two crimes are not so closely related that multiple convictions are prohibited under O.C.G.A. §§ 16-1-6 and16-1-7; accordingly, even if the same conduct establishes the commission of both aggravated battery and cruelty to children, the two crimes do not merge, and thus a defendant was properly convicted of both crimes (overruling Jones v. State, 276 Ga. App. 762 (624 S.E.2d 291) (2005); Etchinson v. State, 245 Ga. App. 449 (538 S.E.2d 87) (2000); and Harmon v. State, 208 Ga. App. 271 (430 S.E.2d 399) (1993)). Waits v. State, 282 Ga. 1, 644 S.E.2d 127 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Merger of child molestation crimes.
- After the defendant was convicted of four counts of child molestation, the court of appeals erred in evaluating the defendant's claim that three of the child molestation counts should have been merged together using the "required evidence" test because the defendant was convicted of multiple counts of the same crime, and the court of appeals should have used the applicable unit-of-prosecution analysis to determine whether the three child molestation counts merged. Scott v. State, 306 Ga. 507, 832 S.E.2d 426 (2019).
Offenses of false imprisonment and aggravated assault did not merge with the offenses of rape and aggravated sodomy where the rape victim was cut with a knife during a break in the numerous sexual assaults committed upon the victim, and where the victim was forced to lie on the floor motionless while the defendant left the room for a period of time. Gilbert v. State, 176 Ga. App. 561, 336 S.E.2d 828 (1985).
Acquittal on aggravated sodomy charge did not bar conviction for sexual assault under another count of the indictment. The dates alleged for the two charges were different, and the victim recounted two separate incidents when defendant performed oral sex on the victim. In short, the charges did not involve the same conduct, and no substantive or procedural aspects of double jeopardy were violated. Brown v. State, 188 Ga. App. 510, 373 S.E.2d 293 (1988).
Voluntary manslaughter and burglary are not included offenses within the meaning of former Code 1933, § 26-506(a)(1). Oglesby v. State, 243 Ga. 690, 256 S.E.2d 371 (1979).
Burglary conviction not bar to rape conviction.
- When the defendant was convicted of rape after pleading guilty to burglary, a motion for autrefois convict was denied because the two separate crimes arose from the same series of acts and defendant's guilty plea to burglary did not operate as a conviction of the rape charge so as to bar the prosecution thereof. Jones v. State, 169 Ga. App. 4, 311 S.E.2d 485 (1983).
Defendant's burglary conviction did not merge with rape and sodomy charges because the burglary was completed when defendant entered the apartment without authority with intent to commit the other crimes charged. Hardegree v. State, 230 Ga. App. 111, 495 S.E.2d 347 (1998).
Burglary and felony murder with burglary as predicate felony.
- While the evidence was sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of felony murder, with burglary as the predicate felony, armed robbery, burglary, possession of a firearm during the commission of a crime, and misdemeanor possession of marijuana, the defendant's conviction for burglary could not stand because the burglary conviction served as the predicate felony for the felony murder conviction; thus, it was error to sentence the defendant for both felony murder and burglary. Young v. State, 291 Ga. 627, 732 S.E.2d 269 (2012).
Murder and concealing a death are separate crimes, requiring separate acts and criminal intent. Durham v. State, 243 Ga. 408, 254 S.E.2d 359 (1979).
Killing two persons with single stroke.
- When one is charged with homicide of different people in different counts and is found guilty on each count, that person may be sentenced separately on each count to run consecutively; killing different persons constitutes separate crimes even though done at the same time with one stroke of the same death-dealing instrument. Rogers v. State, 163 Ga. App. 641, 295 S.E.2d 140 (1982), overruled on other grounds by Bailey v. State, 2016 Ga. App. LEXIS 433 (Ga. Ct. App. 2016).
Felony murder and malice murder.
- In a case involving two homicides, when the evidence supported convictions for malice murder, felony murder convictions merged into the malice murder convictions by operation of law and, thus, judgments of conviction and sentences on the felony murder counts would be vacated. Barker v. State, 263 Ga. 746, 438 S.E.2d 625 (1994).
Malice murder and felony murder.
- Trial court erred by sentencing defendant to concurrent sentences of life imprisonment for malice murder and felony murder because there was only a single victim; thus, the defendant could not be convicted and sentenced for both murder counts. Gamble v. State, 291 Ga. 581, 731 S.E.2d 758 (2012).
Escape merged with felony murder.
- Since the underlying felony charged to the jury for the felony murder charge was escape with a dangerous weapon, defendant's separate conviction for this escape was set aside as having merged with the felony murder. Thomas v. State, 256 Ga. 176, 345 S.E.2d 350 (1986).
Two aggravated assaults, each against different individuals, are separate crimes.
- When two aggravated assault indictments stemming from a single course of conduct differ only in that a different victim was named in each, the difference was crucial as two separate and distinct crimes were thereby charged and former Code 1933, § 26-506 did not apply. Heard v. State, 126 Ga. App. 62, 189 S.E.2d 895 (1972).
No separation of time in assault and battery.
- In defendant's convictions on one count of simple assault and two counts of battery resulting from a fight with a romantic friend, trial court erred by not merging two counts of battery for which defendant was sentenced to two consecutive 12-month terms as the state failed to present evidence that two separate batteries were completed; the state presented no evidence that defendant delivered the blows to the friend in two completed exchanges separated by a meaningful interval of time or with distinct intentions. Thompson v. State, 291 Ga. App. 355, 662 S.E.2d 135 (2008).
Robbing two victims constitutes two offenses thus no merger.
- Two armed robbery convictions under O.C.G.A. § 16-8-41(a) did not merge pursuant to O.C.G.A. § 16-1-7(a)(1) as: (1) a store's money was taken from the immediate presence of two employees, who were both responsible for and had possession of the store's receipts, regardless of which employee may actually have been counting the money when the robbery occurred; (2) each employee who was robbed was a victim, regardless of who owned the money; and (3) as two victims were robbed, defendant could be charged with the robbery of each victim. Green v. State, 265 Ga. App. 126, 592 S.E.2d 901 (2004).
Crime of terroristic threats not included within crime of aggravated assault with intent to murder. Echols v. State, 134 Ga. App. 216, 213 S.E.2d 907 (1975).
Carrying concealed weapon not included in aggravated assault with deadly weapon.
- Offense of carrying a concealed weapon is not included in offense of aggravated assault with deadly weapon. Howard v. State, 128 Ga. App. 807, 198 S.E.2d 334 (1973).
Carrying weapon without license is not included in aggravated assault with deadly weapon. Thomas v. State, 128 Ga. App. 538, 197 S.E.2d 452 (1973).
Multiple felony convictions not related to separate traffic violations.
- Felony charges against a defendant, which included armed robbery, hijacking a motor vehicle, kidnapping, and possessing a firearm during the commission of a crime, did not require proof of the same elements involved in the traffic violations for which the defendant was convicted of in a different court; therefore, the felony convictions imposed against the defendant did not violate the defendant's right against double jeopardy. Jaheni v. State, 285 Ga. App. 266, 645 S.E.2d 735 (2007).
3. Crimes Against Property
Armed robbery and motor vehicle theft as included offenses.
- One who takes a motor vehicle belonging to another from that person by use of an offensive weapon would be guilty of both armed robbery and motor vehicle theft but could be punished for only one crime. Holt v. State, 239 Ga. 606, 238 S.E.2d 399 (1977).
Possession of firearms as lesser included offense of armed robbery.
- Where only one firearm is involved in commission of armed robbery, its possession becomes a lesser included offense of armed robbery, and accused may not be convicted of both offenses. Jackson v. State, 143 Ga. App. 406, 238 S.E.2d 752 (1977).
Possession of a firearm during the commission of a felony did not merge with an attempted armed robbery conviction because the crime of possession of a firearm is considered to be a separate offense under O.C.G.A. § 16-11-106(b) and (e). McKinney v. State, 274 Ga. App. 32, 619 S.E.2d 299 (2005).
Possession of a firearm by a convicted felon is not "included" in crime of armed robbery even though both offenses arose during one transaction. Coleman v. State, 163 Ga. App. 173, 293 S.E.2d 395 (1982).
When a convicted felon is in possession of a sawed-off shotgun, two separate and distinct crimes are being committed, because a prohibited person is in possession of a prohibited weapon. One crime is not "included" in the other and they do not merge. Bivins v. State, 166 Ga. App. 580, 305 S.E.2d 29 (1983).
Theft by deception and theft by taking.
- Defendant's rights against double jeopardy are not infringed upon by prosecutions and subsequent convictions for both theft by deception and theft by taking. Stone v. State, 166 Ga. App. 245, 304 S.E.2d 94 (1983).
Forgery and false writing.
- When defendant was convicted of first-degree forgery under O.C.G.A. § 16-9-1 and false writing under O.C.G.A. § 16-10-20 for obtaining expungement order by presenting a Georgia Crimes Information Center certificate that had been altered to state that defendant had no criminal record, counts were not included in each other under O.C.G.A. §§ 16-1-6 and16-1-7; false writing charge did not require proof that the writing purported to be made by authority of one who in fact gave no such authority, and forgery charge did not require proof that the writing was made or used in a matter within jurisdiction of the district attorney's office. Jones v. State, 290 Ga. App. 490, 659 S.E.2d 875 (2008).
Entering automobile with intent to commit theft and theft.
- When entering automobile with intent to commit theft was based on the same entry into the automobile which resulted in the theft of a pocketbook, and the evidence introduced to establish the latter also established the former, the former was included in the latter as a matter of fact and defendant could not be convicted of both offenses. Phillips v. State, 162 Ga. App. 199, 290 S.E.2d 142 (1982).
Theft of automobile may constitute armed robbery.
- While theft of automobile may be committed without committing armed robbery, theft of automobile may constitute armed robbery. Roberts v. State, 228 Ga. 298, 185 S.E.2d 385 (1971).
Offenses of robbery and armed robbery did not merge as a matter of law, when separate incidents (simple taking of a pistol and then taking the other items at gunpoint) involved different actions, different specific objectives or intents, and different victims. Millines v. State, 188 Ga. App. 655, 373 S.E.2d 838 (1988).
Armed robbery and motor vehicle theft do not necessarily arise from same conduct, and independent prosecutions for each offense will not necessarily implicate the law's prohibition against placing defendant in double jeopardy or subjecting defendant to "successive" or "multiple" prosecutions. Smith v. State, 173 Ga. App. 728, 327 S.E.2d 839 (1985).
Kidnapping as incidental to, rather than included in, robbery.
- When facts supporting robbery charge included taking property in presence of boys, and defendants' additional conduct of forcing the boys into various rooms and the attic and tying them were incidental to, but not part of, the robbery, that conduct constituted a separate crime, kidnapping, which did not merge with the robbery as a matter of fact. Chambley v. State, 163 Ga. App. 502, 295 S.E.2d 166 (1982).
Burglary and robbery not lesser included offenses of each other as matter of law.
- Statutory definition of burglary and robbery makes it clear that the legislature intended to prohibit two designated kinds of general conduct, and that the two crimes, which were codified in separate chapters, are not established by same proof of all facts; thus, neither crime is a lesser included offense of the other as a matter of law or fact. Moore v. State, 140 Ga. App. 824, 232 S.E.2d 264 (1976), cert. denied, 462 U.S. 1124, 103 S. Ct. 3097, 77 L. Ed. 2d 1356 (1983).
Neither burglary nor robbery is a lesser, or included, offense of the other as a matter of law or fact, for the facts must differ to convict for each offense. Luke v. State, 171 Ga. App. 201, 318 S.E.2d 833 (1984).
No double jeopardy violation occurred when defendant was convicted of and sentenced for both burglary and robbery. Luke v. State, 171 Ga. App. 201, 318 S.E.2d 833 (1984).
Burglary, kidnapping, terroristic threats, and possession of a firearm did not merge with attempted armed robbery.
- Convictions for burglary, kidnapping, terroristic threats, and possession of a firearm during the commission of a felony did not merge with attempted armed robbery conviction because the attempted armed robbery was complete before the crimes were committed inside the residence; the defendant discussed with the co-worker the idea to dress up as a heating and air technician to perform a robbery, traveled to the residence armed with handguns and a hollow clipboard used to conceal the handgun, and pointed the handgun at a victim before entering the house. McKinney v. State, 274 Ga. App. 32, 619 S.E.2d 299 (2005).
Burglary and murder as included offenses.
- Charges of burglary based on defendant's intent to commit aggravated assault on dwelling's occupant, and murder for death of occupant during burglary, were neither legally incompatible nor lesser included offenses of each other. Williams v. State, 250 Ga. 553, 300 S.E.2d 301 (1983), overruled on other grounds by Venturino v. State, 830 S.E.2d 110, 2019 Ga. LEXIS 435 (Ga. 2019).
Theft of numerous articles in one transaction.
- If in single transaction more articles than one belonging to same owner are stolen, indictment may charge larceny of the whole in one count. It is but one larceny. Breland v. State, 135 Ga. App. 478, 218 S.E.2d 153 (1975).
In prosecution for theft, the evidence showed that the tractor and plow were stolen at the same time, from the same place and from the same victim; thus, former Code 1933, § 26-506(a)(1) prohibited multiple conviction, since the theft of the plow was included within the larceny of the tractor. Brogdon v. State, 138 Ga. App. 900, 228 S.E.2d 5 (1976).
After the defendant was convicted of both burglary and theft by taking, the conviction and sentence for theft by taking was set aside because theft by taking is a lesser included offense to burglary, and an accused may not be convicted of more than one crime if one crime is included in the other. McClinic v. State, 172 Ga. App. 54, 321 S.E.2d 796 (1984).
Crimes against property.
- Defendant was properly convicted of both burglary and financial transaction card theft after gaining entry into the dwelling as each offense had distinct elements. McConnell v. State, 263 Ga. App. 686, 589 S.E.2d 271 (2003).
Criminal trespass as lesser included offense of burglary.
- Defendant could properly be sentenced to serve consecutive terms on defendant's convictions of criminal damage to property in the second degree and criminal trespass, where the latter crime had been charged as the lesser offense of burglary. Williams v. State, 180 Ga. App. 854, 350 S.E.2d 837 (1986).
State may convict and punish accused for burglary and unlawful possession of firearm by a previously convicted felon, when the firearm was taken in the burglary. The offenses charged were separate and distinct and there was no merger; evidence used to establish the burglary was not again used to establish the later crime of possession of a weapon by a convicted felon. Bogan v. State, 177 Ga. App. 614, 340 S.E.2d 256 (1986).
Criminal trespass and criminal damage to property.
- When the defendant was convicted of criminal damage to property in second degree (a felony) and criminal trespass (a misdemeanor) and when the offenses were committed at different apartments under different tenancies, such convictions did not fall within the purview of former Code 1933, § 26-506(a). Hiatt v. State, 133 Ga. App. 111, 210 S.E.2d 22 (1974).
Residential mortgage fraud and theft by deception.
- Trial court erred in quashing an indictment for counts of residential mortgage fraud, in violation of O.C.G.A. § 16-8-102, and counts of felony theft by deception, in violation of O.C.G.A. § 16-8-3, because the indictment was not duplicitous under O.C.G.A. § 16-1-7(a)(2). State v. Corhen, 306 Ga. App. 495, 700 S.E.2d 912 (2010).
Three vehicle collisions arising out of erratic driving arose from the same conduct.
- Pursuant to O.C.G.A. § 16-1-7, a defendant could not be prosecuted for DUI and other traffic citations by a city after the defendant had already pled guilty to charges issued by the state patrol arising out of the same course of conduct. Although the defendant struck three different cars, there was no break in the action of the defendant's erratic driving. Dean v. State, 309 Ga. App. 459, 711 S.E.2d 42 (2011).
4. Application to Other Crimes
Possession of cocaine included in trafficking offense.
- Offenses of possession of cocaine and possession of cocaine with intent to distribute were lesser included offenses, as a matter of fact, of the trafficking offense since proof of the two possession offenses was established by "the same or less than all the facts" required to establish the distribution offense; thus, it was error to convict defendant of all three offenses. Hancock v. State, 210 Ga. App. 528, 437 S.E.2d 610 (1993).
Selling cocaine and selling cocaine within 1000 feet of public housing project.
- Convictions for selling cocaine (O.C.G.A. § 16-13-30) and selling cocaine within 1000 feet of a public housing project (O.C.G.A. § 16-13-32.5) did not merge because the latter statute contains a specific non-merger provision and the intent thereof is simply to increase the punishment for violating both statutes. Harper v. State, 213 Ga. App. 611, 445 S.E.2d 300 (1994).
Drug possession.
- Trial court did not err when the court granted the defendant's plea in bar as to the second accusation for possession of Xanax because the state had charged the defendant with the identical crime of possession of an unspecified amount of Xanax on a prior date in two accusations, the second of which was brought after the defendant had pled guilty to the first. State v. Pruiett, 324 Ga. App. 789, 751 S.E.2d 579 (2013).
Trial court erred by granting the defendant's plea in bar as to the second accusation's charges for possession of methamphetamine, clonazepam, and marijuana because the defendant could not have been convicted of possession of those drugs in a former prosecution, which involved only Xanax. State v. Pruiett, 324 Ga. App. 789, 751 S.E.2d 579 (2013).
Illegal possession of drugs as lesser included offense of illegal sale.
- Illegal sale and distribution of LSD and possession of LSD are included offenses. Wells v. State, 126 Ga. App. 130, 190 S.E.2d 106 (1972).
When the indictment shows offenses allegedly took place on the same date and evidence conclusively shows defendant's arrest arose out of a single transaction, the defendant's conviction of the offense of illegally selling and distributing heroin necessarily includes the offense of possessing heroin. Sturgis v. State, 128 Ga. App. 85, 195 S.E.2d 682 (1973).
Offense of sale of marijuana and heroin necessarily included offense of possession of marijuana and heroin, unless evidence showed they were on different occasions. Burns v. State, 127 Ga. App. 828, 195 S.E.2d 189 (1973).
As a matter of law, crime of illegal possession of heroin is not included in crime of illegal sale of heroin for purposes of double jeopardy and multiple prosecution. Wilson v. Hopper, 234 Ga. 859, 218 S.E.2d 573 (1975).
When the defendant is convicted of both sale and possession of illegal drugs, and evidence required to convict on illegal sale was the only evidence showing possession, the sentence on a conviction of a lesser included crime (possession) cannot stand. Anthony v. Hopper, 235 Ga. 336, 219 S.E.2d 413 (1975), overruled on other grounds, State v. Hudson, 293 Ga. 656, 748 S.E.2d 910 (2013).
Although the accomplice's conduct in fraudulently representing to the pharmacist that the accomplice had a doctor's authority to call in the prescriptions occurred in a single telephone call, the defendant's conduct of acquiring possession of the several different controlled substances was not the same conduct for the purpose of deciding whether the offenses merged because acquiring possession of the first prescription drug was not the same conduct as acquiring possession of the second prescription drug, and neither were the same as acquiring possession of the third prescription drug; thus, those offenses of obtaining a controlled substance by fraud did not merge for sentencing purposes. Hopkins v. State, 328 Ga. App. 844, 761 S.E.2d 896 (2014).
Possession of drug-related objects conviction merged as a matter of fact into defendant's felony conviction for possession of cocaine. Reddick v. State, 249 Ga. App. 678, 549 S.E.2d 151, cert. denied, No. S01C1352, 2001 Ga. LEXIS 802 (Oct. 1, 2001).
Trafficking and possession of methamphetamine.
- Because the indictment for a charge of possession of methamphetamine clearly stated that it was based upon methamphetamine "separate from the quantity described" in the separate trafficking charge, the trial court did not err in failing to merge the two offenses. Bellamy v. State, 243 Ga. App. 575, 530 S.E.2d 243 (2000).
Possession and distribution of methamphetamine.
- Possession of methamphetamine and distribution of methamphetamine charges did not merge under O.C.G.A. § 16-1-7 when defendant smoked methamphetamine in the company of a second person who later returned with a fresh supply of the drug with which defendant injected the second person; methamphetamine that defendant possessed while smoking constituted a separate amount of methamphetamine not accounted for in the distribution charge. Crutchfield v. State, 291 Ga. App. 24, 660 S.E.2d 878 (2008).
Possession of illegal drug is crime separate and distinct from illegal sale of that same substance, where the illegal sales were alleged to have taken place on dates different from the date on which drugs were found in defendant's residence. Morgan v. State, 168 Ga. App. 310, 308 S.E.2d 583 (1983).
Obtaining controlled substance by theft and theft by taking.
- When the defendant's obtaining a controlled substance by theft conviction was reversed, the defendant's plea in bar to the state's subsequent indictment of the defendant for obtaining a controlled substance by theft was improperly denied because, although constitutional jeopardy did not attach to the obtaining a controlled substance by theft count in the former prosecution as that offense was not within the jurisdiction of the trial court as a result of the state's failure to indict it, constitutional jeopardy did attach to the misdemeanor theft by taking count and, thus, double jeopardy prevented a subsequent prosecution of offenses arising from the same transaction, including the obtaining a controlled substance by theft count. Goodwin v. State, 341 Ga. App. 530, 802 S.E.2d 3 (2017).
Delivery of marijuana and distribution of marijuana are both distinct violations of O.C.G.A. § 16-13-30(b); they are not included but each may be committed exclusive of the other. Buford v. State, 162 Ga. App. 498, 291 S.E.2d 256 (1982).
Possession of drug paraphernalia and violation of the Georgia Controlled Substance Act, O.C.G.A. § 16-13-1 et seq., are not included crimes as a matter of fact or of law. Corbitt v. State, 169 Ga. App. 739, 315 S.E.2d 25 (1984).
Trial court erred in sentencing defendant for possession of methamphetamine and possession with the intent to distribute methamphetamine where the convictions were based upon the same evidence. Gooch v. State, 249 Ga. App. 643, 549 S.E.2d 724 (2001).
Possession of marijuana and possession with intent to distribute.
- Offense of possession of marijuana was included in the offense of possession of marijuana with intent to distribute, where the possession charge could be established by proof of a less culpable mental state (general criminal intent) than was required to establish the commission of possession with intent to distribute (specific criminal intent to distribute). Talley v. State, 200 Ga. App. 442, 408 S.E.2d 463 (1991).
Financial transaction card theft not lesser included offense of financial transaction card fraud.
- Financial transaction card theft, O.C.G.A. § 16-9-31, is not a lesser included offense of financial transaction card fraud, O.C.G.A. § 16-9-33; thus, defendant's prior conviction for the former offense did not preclude prosecution for the latter. Sword v. State, 232 Ga. App. 497, 502 S.E.2d 334 (1998).
Offenses of theft by conversion and securities violations did not merge.
- Trial court did not err in failing to merge the theft by conversion counts under O.C.G.A. § 16-8-3, and the securities violation counts under O.C.G.A. § 10-5-12 filed against defendant because the state had to prove separate facts to find defendant guilty of the theft by conversion offenses and the violations of the Georgia Securities Act, O.C.G.A. § 10-5-1 et seq. Furthermore, the securities violation counts were complete before the theft conversion occurred. Lavigne v. State, 299 Ga. App. 712, 683 S.E.2d 656 (2009).
Gambling.
- Gambling is one thing and operating a gambling house is a kindred but entirely different thing; different evidence is required to convict of these separate offenses. No absurdity or repugnancy is created by acquittal of gambling and conviction of operating a gambling house. McGahee v. State, 133 Ga. App. 964, 213 S.E.2d 91 (1975).
Although arising from same transaction, offenses of possession of gambling devices and equipment, and commercial gambling by operating a gambling place, are separate and distinct. Baxter v. State, 134 Ga. App. 286, 214 S.E.2d 578, cert. denied, 423 U.S. 895, 96 S. Ct. 194, 46 L. Ed. 2d 127 (1975).
Trial court did not err in sentencing defendant for commercial gambling, communicating gambling information and keeping a gambling place; the latter two offenses are not included in offense of commercial gambling. Romano v. State, 162 Ga. App. 816, 292 S.E.2d 533 (1982).
Insurance fraud violations.
- Defendant was properly sentenced to separate terms for insurance fraud violations committed by several co-conspirators; each fraudulent claim made was a separate offense and did not merge under O.C.G.A. § 16-1-7. Crowder v. State, 222 Ga. App. 351, 474 S.E.2d 246 (1996).
Dogfighting was not, as a matter of law or of fact, a lesser included offense of commercial gambling. Hargrove v. State, 253 Ga. 450, 321 S.E.2d 104 (1984).
Animal cruelty and intimidating court officers erroneously joined.
- Trial court erred in joining the animal cruelty charge with that of intimidating court officers because there was no showing that the crimes alleged were based on the same conduct, were part of a single scheme or plan, or were a series of connected acts; thus, joinder was not authorized. Harrell v. State, 297 Ga. 884, 778 S.E.2d 196 (2015).
Convictions of laying drags, reckless driving and speeding were not violative of O.C.G.A. § 16-1-7 as each offense was established by proof of different facts and evidence shows that the three offenses occurred at separate times and locations during pursuit of appellant's vehicle. Neither offense was included in the other as a matter of fact or law. Phillips v. State, 162 Ga. App. 471, 291 S.E.2d 776 (1982).
Reckless driving, reckless conduct and speeding merge.
- Trial court erred in failing to merge defendant's convictions for reckless driving, speeding, and reckless conduct since defendant's conviction for reckless conduct was proved by less than all of the facts used to prove defendant guilty of reckless driving, and the speeding charge, as alleged, was an element of both reckless driving and reckless conduct. Carrell v. State, 261 Ga. App. 485, 583 S.E.2d 167 (2003).
Reckless driving and reckless conduct do not merge.
- Trial court did not err by failing to merge the crimes of reckless driving, O.C.G.A. § 40-6-390, and reckless conduct, O.C.G.A. § 16-5-60, for punishment because the two offenses did not merge for sentencing when §§ 40-6-390 and16-5-60 each had a provision that required proof of a fact that the other did not, and to establish a violation of § 40-6-390, the state only had to prove that the defendant drove the car in a manner exhibiting reckless disregard for the safety of persons or property; reckless conduct requires proof of harm or an actual threat of harm to the bodily safety of another person and does not require that the crime be committed while driving a motor vehicle, but reckless driving does not require that there be an injured or threatened party and instead merely requires that the state prove a general disregard for the safety of persons or property while driving a motor vehicle. Howard v. State, 301 Ga. App. 230, 687 S.E.2d 257 (2009).
Reckless conduct conviction no bar to aggressive driving conviction.
- Defendant's previous conviction for reckless conduct under O.C.G.A. § 16-5-60 did not bar a later conviction for aggressive driving under O.C.G.A. § 40-6-397 when both convictions arose out of the same incident, and when conviction for aggressive driving did not require proof of the fact that defendant endangered the bodily safety of the other driver and other driver's family, while reckless conduct conviction did not require proof of the fact that defendant drove with the intent to annoy, harass, intimidate, and injure another; thus, each crime required proof of a fact that the other did not, so neither offense was included in the other so as to violate the substantive bar against double jeopardy of O.C.G.A. § 16-1-7. Winn v. State, 291 Ga. App. 16, 660 S.E.2d 883 (2008).
Hunting on public road from motor vehicle at night.
- After the defendants hunted from a motor vehicle on a public road at night using a light exceeding six volts, it was not in error to convict the defendants of the three separate crimes of hunting at night, hunting on a public road, and hunting from a motor vehicle. Sanford v. State, 169 Ga. App. 769, 315 S.E.2d 281 (1984).
Driving under the influence was lesser included offense of first degree vehicular homicide, and conviction of both offenses was proscribed. Duncan v. State, 183 Ga. App. 368, 358 S.E.2d 910 (1987).
Driving under the influence and probationary license violation.
- Defendant's convictions for operating a motor vehicle under the influence of alcohol while having a probationary license and driving under the influence of alcohol could not both stand since, under the facts, the latter was a lesser included offense in the violation of the probationary license offense. Williams v. State, 223 Ga. App. 209, 477 S.E.2d 367 (1996).
Improper lane change, driving without headlights, and driving under the influence of alcohol (DUI) convictions did not merge because the facts alleged in the accusation with regard to the DUI charge were not also sufficient to establish the lesser offenses of improper lane change and driving without headlights. Parker v. State, 249 Ga. App. 530, 549 S.E.2d 154 (2001).
DUI and criminal trespass separate transactions.
- Motion in autrefois convict and plea of former jeopardy was properly denied because the offense of DUI did not arise from the same transaction as the criminal trespass; the defendant was arrested on a warrant for criminal trespass at the residence of a live-in girlfriend, while the defendant was arrested for DUI near, but not at, the residence. Thus, the incidents were separate transactions. Johns v. State, 319 Ga. App. 718, 738 S.E.2d 304 (2013).
Driving on the wrong side of the road is a lesser included offense of second degree vehicular homicide. Rank v. State, 179 Ga. App. 28, 345 S.E.2d 75 (1986).
Improper passing and reckless driving are lesser included offenses of vehicular homicide. Nash v. State, 179 Ga. App. 702, 347 S.E.2d 651 (1986).
Violation of oath and theft by taking not merged.
- Charges of violation of oath by a public officer and theft by taking in two indictments do not merge, since the essential elements for each crime are different, even though there may be an overlapping of proof between the two. Freeman v. State, 184 Ga. App. 678, 362 S.E.2d 413 (1987).
Selling alcohol without license and selling on Sunday.
- Although the two crimes alleged share the same essential element of selling alcoholic beverages, each of the crimes has an additional essential element distinct from the other. Proof that defendants sold alcohol without a license would not prove that they sold alcoholic beverages on Sunday, nor would proof of the latter establish the former. Martin v. State, 185 Ga. App. 145, 363 S.E.2d 765 (1987).
Offenses of furnishing alcohol to minors and maintaining a disorderly house did not merge, because each of the offenses had elements not required by the other and each prohibited a distinct type of criminal conduct. Tate v. State, 198 Ga. App. 276, 401 S.E.2d 549 (1991).
Predicate offenses for RICO violation.
- Convictions on 75 counts of stealing public records could not stand, where the state, by choosing gratuitously to include as predicates for a Racketeer Influenced and Corrupt Organization (RICO) violation all of the instances of the prohibited acts recited in the counts, "used up" the evidence, so that there was none left to form the basis for the separate offenses enumerated in the counts. Martin v. State, 189 Ga. App. 483, 376 S.E.2d 888, cert. denied, 189 Ga. App. 911, 376 S.E.2d 888 (1989).
Failure to strike from a Racketeer Influenced and Corrupt Organizations Act (RICO) indictment, as predicate offenses, three thefts which had been formerly prosecuted was harmless error, where there was no reason to infer that defendant's guilty pleas to other offenses were tainted or otherwise affected by the superfluous addition of predicate offenses which had formerly been prosecuted. Bethune v. State, 198 Ga. App. 490, 402 S.E.2d 276, cert. denied, 198 Ga. App. 897, 402 S.E.2d 276 (1991).
Misuse of a firearm while hunting and failure to report an accidental injury while hunting were both properly prosecuted against defendant without effecting impermissible multiple convictions since the two offenses contain some different elements and require proof of different facts and thus are not included within each other. Lewis v. State, 207 Ga. App. 212, 427 S.E.2d 578 (1993).
Conspiracy and possession of tools for the commission of a crime.
- Even though the crimes of conspiracy and possession of tools for the commission of a crime do not merge as a matter of law, because the form of the indictment required proof of the possession of tools in order to prove the conspiracy, the offenses merged as a matter of fact. Green v. State, 240 Ga. App. 377, 523 S.E.2d 581 (1999).
Prosecution for violation of O.C.G.A.
§ 40-6-395(a) and (b)(5)(A) valid. - Defendant could be lawfully prosecuted for both O.C.G.A. § 40-6-395(a) and (b)(5)(A) without offending O.C.G.A. § 16-1-7(a), although defendant could not be sentenced for both; the court found that because all of the evidence was used up to prove the crime of felony fleeing or attempting to elude, the misdemeanor conviction for fleeing or attempting to elude merged into the greater offense. Buggay v. State, 263 Ga. App. 520, 588 S.E.2d 244 (2003).
Defendant not entitled to jury charge on misdemeanor offense.
- Defense counsel was not ineffective for failing to request a jury charge on the misdemeanor offense of giving a false name to a law enforcement officer under O.C.G.A. § 16-10-25 because the conduct for which a defendant was indicted, falsely telling a GBI special agent that the defendant did not make a9-1-1 call regarding a fire at another agent's residence when in fact the defendant did make the call, would not constitute a violation of § 16-10-25; the defendant failed to show under O.C.G.A. § 16-1-7(a)(1) that the same conduct would result in the violation of the misdemeanor statute. Mahoney v. State, 296 Ga. App. 570, 675 S.E.2d 285 (2009).
Joint Prosecution of Offenses
1. In General
O.C.G.A. § 16-1-7(b) establishes a prosecutorial bar which is broader than that in the United States and Georgia Constitutions, and than the literal provisions of O.C.G.A. § 16-1-8(b)(1). Cochran v. State, 176 Ga. App. 58, 335 S.E.2d 165 (1985).
"Same conduct" construed.
- The phrase "the same conduct" in O.C.G.A. § 16-1-7(b) has been used interchangeably with the phrase "the same transaction." Harrell v. State, 196 Ga. App. 101, 395 S.E.2d 598 (1990).
When two or more offenses may be tried together.
- Two or more offenses may be tried together if they are of same or similar character, even if not part of a single scheme or plan; or if they are based on same conduct or on a series of acts connected together or constituting parts of a single scheme or plan. Gober v. State, 247 Ga. 652, 278 S.E.2d 386 (1981).
Offenses may be joined for trial when they are based: (1) on the same conduct; or (2) on a series of acts connected together; or (3) on a series of acts constituting parts of a single scheme or plan. If offenses are joined for any of these three reasons, the defendant does not have an automatic right of severance; instead, the trial judge may grant severance if it is necessary to achieve a fair determination of the defendant's guilt or innocence of each offense. Isbell v. State, 179 Ga. App. 363, 346 S.E.2d 857 (1986), cert. denied, 479 U.S. 1098, 107 S. Ct. 1319, 94 L. Ed. 2d 172 (1987).
Where the evidence showed a continuous scheme or ongoing spree such that evidence of one incident would be admissible in the trial of the similar crimes committed the same night in the other incident, the trial court did not abuse its discretion in granting the state's motion to consolidate the indictments for trial. Moore v. State, 245 Ga. App. 641, 537 S.E.2d 764 (2000).
Driving under the influence and reckless driving merged into vehicular homicide.
- Convictions for driving under the influence of alcohol and reckless driving merged into a vehicular homicide conviction and were vacated. Harris v. State, 272 Ga. App. 366, 612 S.E.2d 557 (2005).
Offenses arising from same conduct, within jurisdiction of single court, must be prosecuted in single action. Brock v. State, 146 Ga. App. 78, 245 S.E.2d 442 (1978).
Offenses arising from same conduct, but multiple jurisdictions.
- After defendant pled guilty to theft by taking for writing fraudulent checks, defendant could subsequently be prosecuted for forgery for uttering and delivering the checks, without offending the provision of O.C.G.A. § 16-1-7(b), prohibiting multiple prosecutions for crimes arising from the same conduct, because, as venue for the two prosecutions arose in different counties, the offenses were not known to the proper prosecutor and were not within the jurisdiction of a single court. Furthermore, defendant's subsequent prosecution for forgery for uttering and delivering the checks was not barred under O.C.G.A. § 16-1-6 or O.C.G.A. § 16-1-7(a), because the two crimes were not lesser included offenses of the other. Cade v. State, 262 Ga. App. 206, 585 S.E.2d 172 (2003).
Same conduct and same jurisdiction not shown.
- Defendant's conviction for driving under the influence (DUI) less safe was affirmed because the defendant's actions in the Fulton County hit and run incident and the defendant's actions in the Gwinnett County DUI less-safe incident were neither the same transaction nor the same conduct as contemplated by O.C.G.A. § 16-1-7(a). Hassard v. State, 319 Ga. App. 708, 738 S.E.2d 293 (2013).
Same conduct not shown.
- Indictment was not barred by former prosecution since the predicate acts supporting the RICO violation alleged by the indictment in one county were not alleged by the indictment in the other county, and there was otherwise no evidence that the RICO prosecution in one county arose from the same conduct supporting the RICO charges filed against the defendant in the other county. Garrard v. State, 242 Ga. App. 189, 528 S.E.2d 273 (2000).
Although both indictments against the defendant alleged similar schemes to defraud lending institutions, double jeopardy protections under O.C.G.A. §§ 16-1-7(b),16-1-8(b) and Ga. Const. 1983, Art. I, Sec. I, Para. XVIII did not bar the second prosecution; the indictments involved different properties, different coconspirators, different real estate transactions, and, for the most part, different lenders, and the fact that the two separate conspiracies may have overlapped in time and resulted in violations of the same criminal statutes was not determinative. Harrison v. State, 282 Ga. App. 29, 637 S.E.2d 773 (2006).
Former Code 1933, § 26-506(b) requires one prosecution only if several crimes arise from same conduct. Ealey v. State, 139 Ga. App. 604, 229 S.E.2d 86 (1976).
When joint prosecution of multiple charges is mandatory.
- Prosecution of multiple charges together is mandatory where rules relating to venue permit and crimes are known to proper prosecuting officer. Henderson v. State, 227 Ga. 68, 179 S.E.2d 76 (1970), sentence vacated, 408 U.S. 938, 92 S. Ct. 2868, 33 L. Ed. 2d 758 (1972).
State's option upon dismissal of one of several offenses prosecuted together under O.C.G.A.
§ 16-1-7(b). - When more than one offense arises out of same course of action and at same time, upon being faced with dismissal of one offense, state has option of taking appeal from action of trial court while withholding prosecution of other offense or offenses pending outcome of appeal, or alternatively of proceeding with prosecution of remaining offense. Electing to proceed with remaining offense or offenses bars the state from trying dismissed offense by virtue of doctrine of procedural double jeopardy. State v. Brittain, 147 Ga. App. 626, 249 S.E.2d 679 (1978).
Under former Code 1933, § 26-1801 (see now O.C.G.A. § 17-8-3), before the jury was impaneled, a nolle prosequi may be entered at the pleasure of the prosecutor. Singer v. State, 156 Ga. App. 416, 274 S.E.2d 612 (1980).
Indictment is not invalid merely because it includes two entirely separate and distinct crimes. Quarles v. State, 130 Ga. App. 756, 204 S.E.2d 467 (1974).
Including multiple counts in indictment based on same type of recurring conduct.
- Including multiple counts in indictment does not violate provisions of former Code 1933, § 26-506, even though state does not rely on same conduct to establish commission of offenses, but rather on same type of conduct, reoccurring in a number of instances. Steele v. State, 227 Ga. 653, 182 S.E.2d 475 (1971).
When modus operandi of perpetrator is so strikingly alike in different counts that totality of facts unerringly demonstrates and designates the defendant as the common perpetrator, the offenses may be joined, subject to the right of the defendant to severance in the interests of justice. Davis v. State, 159 Ga. App. 356, 283 S.E.2d 286 (1981).
When defendant can be charged with separate, distinct offenses in same indictment.
- Defendant cannot be charged with separate and distinct offenses on same indictment unless they are of same nature, class or species, or arise out of or constitute but one transaction involving same conduct of accused. Fair v. State, 129 Ga. App. 565, 200 S.E.2d 296 (1973).
Impermissible consolidation of indictments is error requiring new trial in each case. Bradford v. State, 126 Ga. App. 688, 191 S.E.2d 545 (1972), overruled on other grounds, Smith v. State, 199 Ga. App. 410, 405 S.E.2d 107 (1991).
If defendant charged with multiple offenses arising from "same conduct" pleads guilty to certain of these offenses, the defendant may then raise a plea of bar against subsequent prosecutions arising from the same course of conduct where the state, through decision or default, has failed to prosecute all offenses together, provided that it was practicable to do so. State v. McCrary, 253 Ga. 747, 325 S.E.2d 151 (1985).
Prosecutor's knowledge of offenses.
- When there is no showing that all of the charges against a defendant were known to the proper prosecuting officer at the time a previous prosecution was commenced, a subsequent prosecution for other violations arising from the same occurrence is not barred by O.C.G.A. § 16-1-7(b) or by O.C.G.A. § 16-1-8(b). Webb v. State, 176 Ga. App. 576, 336 S.E.2d 838 (1985).
O.C.G.A. § 16-1-7(b), requiring that crimes arising out of the same conduct be prosecuted in a single prosecution, applies only with regard to such crimes as are actually known to the prosecuting officer actually handling the proceedings. A constructive knowledge standard is not employed. Baker v. State, 257 Ga. 567, 361 S.E.2d 808 (1987); Dickinson v. State, 191 Ga. App. 467, 382 S.E.2d 187 (1989); Price v. State, 206 Ga. App. 161, 424 S.E.2d 841 (1992); Bonner v. State, 249 Ga. App. 358, 548 S.E.2d 84 (2001).
Defendant may be prosecuted for more than one crime arising from the same conduct if the prosecuting officer actually handling the proceedings does not have actual knowledge of the multiple prosecutions. Farmer v. State, 184 Ga. App. 851, 363 S.E.2d 62 (1987); Hayles v. State, 188 Ga. App. 281, 372 S.E.2d 668 (1988); Cates v. State, 206 Ga. App. 694, 426 S.E.2d 576 (1992).
Knowledge means actual, not constructive, knowledge by the prosecuting officer. Sanders v. State, 188 Ga. App. 774, 374 S.E.2d 542, cert. denied, 188 Ga. App. 912, 371 S.E.2d 878 (1988).
Trial court's denial of defendant's plea of former jeopardy to preclude prosecution for controlled substances act violations was error, where the offense of driving without a license to which defendant pled guilty arose out of the same transaction, and all offenses were known to the prosecutor at the outset. Smith v. State, 190 Ga. App. 246, 378 S.E.2d 493, aff'd, 259 Ga. 352, 381 S.E.2d 37 (1989).
After the defendant pled guilty to giving a false name and address, obstruction of an officer, and driving on a suspended license following dismissal of earlier charges of theft of a motor vehicle, concealing the identity of a motor vehicle, and improper parking, offenses of theft and concealing the identity of a motor vehicle charged in a subsequent indictment did not arise from the same conduct as that of which defendant was convicted, but the offense of improper parking, also charged in the indictment, did arise from the same conduct and should have been dismissed since the prosecuting attorney had actual knowledge of all the crimes. Young v. State, 214 Ga. App. 585, 448 S.E.2d 477 (1994).
Defendant had the burden of showing that the proper prosecuting officer had actual knowledge of all of the charges against that defendant and since the defendant did not satisfy that fact by evidence, the trial court did not err in finding that the defendant failed to satisfy O.C.G.A. § 16-1-7(b) and denying defendant's motion in autrefois convict and plea in bar. Rowe v. State, 265 Ga. App. 809, 463 S.E.2d 21 (1995); Blackwell v. State, 232 Ga. App. 884, 502 S.E.2d 774 (1998).
Defendant was charged with speeding, driving under the influence of drugs, and endangering a child. Defendant pled nolo contendere to, and was sentenced on the speeding charge; therefore, the state was barred from prosecuting defendant for the other two charges which arose from the same conduct and of which the prosecutor had actual knowledge. Weaver v. State, 224 Ga. App. 243, 480 S.E.2d 286 (1997).
O.C.G.A. § 16-1-7(b) only applies to crimes which are "actually known" to the prosecuting officer; constructive knowledge by the prosecuting officer is not sufficient. Hill v. State, 234 Ga. App. 173, 507 S.E.2d 3 (1998).
Even if both a misdemeanor charge for theft by receiving and subsequent felony charge for that crime were for separate items seized by the same police officer from the same location at the same time, this alone would not be sufficient to invoke the bar of double jeopardy because defendant had the burden of showing that, when the misdemeanor prosecution was commenced, the solicitor general had actual knowledge of the felony charge. Honea v. State, 238 Ga. App. 135, 517 S.E.2d 841 (1999).
O.C.G.A. § 16-1-7 does not bar prosecution of other offenses unless the defendant affirmatively shows that the other crimes were actually known to the prosecutor handling the proceedings. Baker v. State, 251 Ga. App. 597, 554 S.E.2d 797 (2001).
After the defendant conceded that there was no prosecuting attorneys assigned to the DeKalb County Recorder's Court, and the presiding judge or arresting officer was not deemed the proper prosecuting officer, the defendant failed in the defendant's burden of showing that the proper prosecuting officer had actual knowledge of all the charges against the defendant. Simmons v. State, 263 Ga. App. 220, 587 S.E.2d 312 (2003).
State was prohibited by O.C.G.A. § 16-1-7(b) from adding new charges to the indictment because the charges in the previous two-count indictment were for different offenses than the ones the state added to the re-indictment, and all of the crimes were actually known to the prosecutor when the defendant commenced the first prosecution. Herrington v. State, 315 Ga. App. 101, 726 S.E.2d 625 (2012).
Defendant's procedural double jeopardy motion was properly denied because the disposition form was legally insufficient to show that the solicitor handling the defendant's guilty plea in state court actually knew that there were felony offenses arising out of the same conduct as the misdemeanor traffic offense as the disposition form simply listed the felony offenses and the date the defendant was initially detained; thus, the state could proceed with the state's prosecution of the defendant in superior court on the felony charges of trafficking in cocaine, possession of cocaine with intent to distribute, abandonment of drugs in a public place, and bribery. Sellers v. State, 332 Ga. App. 14, 770 S.E.2d 31 (2015), cert. denied, No. S15C1309, 2015 Ga. LEXIS 597 (Ga. 2015).
"Proper prosecuting officer" construed.
- Language of subsection (b) of this statute referring to proper prosecuting officer clearly means prosecuting attorney for state; that is, the district attorney or authorized assistants. Singer v. State, 156 Ga. App. 416, 274 S.E.2d 612 (1980).
District attorney, not the assistant district attorney who is actually responsible for the prosecution of the case, was the "proper prosecuting officer at the time of commencing the prosecution" within the meaning of O.C.G.A. § 16-1-7(b), since the district attorney's name on the accusation and the indictment was conclusive circumstantial evidence that the district attorney had actual knowledge of all the offenses arising from the same conduct and the pendency of both prosecutions against the accused but chose to proceed separately as to each. State v. Smith, 259 Ga. 352, 381 S.E.2d 37 (1989).
"Proper prosecuting officer," as that phrase is used in O.C.G.A. § 16-1-7(b), means the prosecuting attorney for the state, i.e., the district attorney or authorized assistants, including state court solicitors and their assistants, and the phrase was not meant to include the arresting officer. Zater v. State, 197 Ga. App. 648, 399 S.E.2d 222 (1990); Rowe v. State, 265 Ga. App. 809, 463 S.E.2d 21 (1995); Dodd v. State, 240 Ga. App. 48, 522 S.E.2d 538 (1999).
O.C.G.A. § 16-1-7(b) applies only to such crimes which are actually known to the prosecuting officer who is handling the proceedings. The defendant bears the burden of showing that further prosecution is barred by the previous prosecution, including a showing that the proper prosecuting attorney had actual knowledge of all the charges. Anderson v. State, 200 Ga. App. 530, 408 S.E.2d 829 (1991).
Appearance of the district attorney's name on both an accusation and indictment constitutes circumstantial evidence which conclusively establishes the district attorney's actual knowledge of the pendency of the prosecutions and of the offenses charged in each. Mack v. State, 249 Ga. App. 424, 547 S.E.2d 697 (2001).
Subsection (b) does not require exclusion of evidence of crimes not subject to prosecution.
- Although O.C.G.A. § 16-1-7(b) does require single prosecution of known crimes arising from same conduct, it does not contain exclusionary rule concerning evidence of crimes which are not subject to prosecution. Favors v. State, 149 Ga. App. 563, 254 S.E.2d 886 (1979).
2. Crimes Against the Person
Failure of prosecuting officials to include underlying felony charge in a murder indictment constitutes a statutory procedural bar to prosecution on the charge of felony murder, where the commission of the felony and the murder arise from the "same conduct." McCrary v. State, 254 Ga. 382, 329 S.E.2d 473 (1985).
After the defendant committed four distinct offenses (driving under the influence, reckless driving, fleeing to elude arrest, and aggravated assault) during a single continuous course of conduct in a single night, and these offenses were known to the prosecutor at the time of the prosecution in the probate court, at which time the court accepted guilty pleas to the two misdemeanor charges, the successive prosecution in the superior court for the felony charges was barred. McCrary v. State, 171 Ga. App. 585, 320 S.E.2d 567 (1984), aff'd, 253 Ga. 747, 325 S.E.2d 151 (1985); Hooker v. State, 240 Ga. App. 141, 522 S.E.2d 723 (1999).
Separate victims of obstruction of a law enforcement officer.
- Upon conviction of defendant of three counts of misdemeanor obstruction of a law enforcement officer, since there were three separate victims, the trial court did not err in treating the counts as discrete offenses for sentencing. Denny v. State, 222 Ga. App. 674, 475 S.E.2d 698 (1996).
Kidnapping with bodily injury in one county and murder in another county permitted separate prosecution.
- After the accused kidnapped the victim and inflicted bodily injury upon the victim in one county, and then abducted the victim to a second county in which the accused killed the victim, the two offenses were not within a single court's jurisdiction and could not be tried together; therefore, there was no procedural bar to subsequent prosecution for murder in the second county. Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 667 (1978).
Offense of hijacking did not merge with defendant's armed robbery conviction for sentencing purposes. Dillard v. State, 223 Ga. App. 405, 477 S.E.2d 674 (1996).
When death occurs after conviction for aggravated assault.
- When criminal offense of murder was not yet complete because the victim had not died at time of aggravated assault conviction, subsequent prosecution for murder was not barred by express terms of former Code 1933, §§ 26-506(b) and 26-507(b) (see now O.C.G.A. §§ 16-1-7(b) and16-1-8(b)), because the crime of murder was not consummated when the former trial began. Lowe v. State, 240 Ga. 767, 242 S.E.2d 582 (1978).
Vehicular homicide prosecution not barred when victim died following traffic violation prosecutions.
- Prosecution for vehicular homicide was not barred against a defendant who, at prior proceedings, had been prosecuted for and pled guilty to other offenses arising from the same incident since, at the time of the earlier proceedings, the victim had not yet died. Herrera v. State, 175 Ga. App. 740, 334 S.E.2d 339 (1985).
Three deaths from one auto accident.
- Defendant could be sentenced on three counts of vehicular homicide although all three deaths resulted from one negligent act. Smith v. State, 164 Ga. App. 624, 298 S.E.2d 587 (1982).
Reckless driving and serious injury by vehicle offenses.
- Trial court did not err by failing to merge a reckless-driving charge into a serious-injury-by-vehicle charge because the two crimes were entirely separate and distinct, requiring a showing of different elements and based on the defendant's drunk driving of a four-wheeler ATV with a 10-year-old passenger, who was brain-damaged when the defendant clipped a tractor and flipped the ATV; the state used the evidence of the clipping of the tractor scoop, which caused the rollover and injury to the child, as the elements of the serious-injury-by-vehicle offense, which was separate from and sequential to the reckless-driving offense, which was premised on the defendant's intoxication. Croft v. State, 278 Ga. App. 107, 628 S.E.2d 144 (2006).
Multiple sex crimes against children.
- Trial court did not err in refusing to merge a charge of statutory rape with an incest charge, a charge of child molestation with that of aggravated child molestation, and charges of aggravated sodomy and aggravated child molestation. Those multiple offenses did not merge as a matter of fact or law; under the circumstances of the case, the same conduct was not being punished twice, nor was one act included in the other so as to proscribe the separate conviction and punishment for each act. Williams v. State, 195 Ga. App. 476, 394 S.E.2d 123 (1990).
Attempt to commit child molestation and enticing a child for indecent purposes.
- Trial court did not err in failing to merge the defendant's convictions for criminal attempt to commit child molestation and criminal attempt to entice a child for indecent purposes because to convict the defendant of criminal attempt to commit child molestation, the state had to prove that the defendant took a substantial step towards doing an immoral or indecent act to or with someone believed to be under the age of 16, and for purposes of convicting the defendant of criminal attempt to entice a child for indecent purposes, the state was not required to prove that the defendant was acting with an intent or desire to satisfy sexual desires. Castaneira v. State, 321 Ga. App. 418, 740 S.E.2d 400 (2013).
Aggravated child molestation and simple sodomy.
- As defendant's conduct satisfied the elements of aggravated child molestation, the argument that defendant should have been sentenced for the lesser crime of simple sodomy was unavailing; the state was not required to prosecute only a lesser offense committed, but could prosecute the defendant under any or all of the statutes that fit defendant's conduct. Hunter v. State, 263 Ga. App. 747, 589 S.E.2d 306 (2003).
Aggravated assault and feticide.
- Defendant's convictions for aggravated assault in violation of O.C.G.A. § 16-5-21(a)(2) and feticide in violation of O.C.G.A. § 16-5-80(a) did not merge for sentencing purposes because the victim of the aggravated assault was the defendant's girlfriend, while the victim of the feticide was the girlfriend's unborn child; the merger doctrine does not apply if each of the charged crimes was committed against a different victim. Carmichael v. State, 305 Ga. App. 651, 700 S.E.2d 650 (2010).
Aggravated assault and murder.
- Trial court erred by convicting the defendant of aggravated assault and an associated weapons possession conviction in addition to murder because, with regard to the stabbing death of the victim, there was no evidence of any interval, deliberate or otherwise, separating the infliction of the victim's non-fatal wounds from the infliction of the wounds that killed the victim. Reddings v. State, 292 Ga. 364, 738 S.E.2d 49 (2013).
Defendant's conviction for aggravated assault against one victim was properly not merged with the conviction for malice murder because aggravated assault was separated by a deliberate interval from malice murder as aggravated assault occurred when the defendant shot several times through the bedroom door, and malice murder occurred only after the victim fled into the bedroom closet, the defendant entered the room, and the victim came out to confront the defendant. Miller v. State, 305 Ga. 276, 824 S.E.2d 342 (2019).
Aggravated assault accounts should merge.
- Trial court erred in failing to merge two aggravated assault counts because there was no element of aggravated assault with a deadly weapon that was not contained in aggravated assault by discharging a weapon from a moving vehicle. Adkins v. State, 301 Ga. 153, 800 S.E.2d 341 (2017).
Felony murder and vehicular homicide.
- Defendant could be indicted for vehicular homicide under O.C.G.A. § 40-6-393 and felony murder during the commission of fleeing and attempting to elude a police officer under O.C.G.A. § 40-6-395. State v. Tiraboschi, 269 Ga. 812, 504 S.E.2d 689 (1998).
Multiple felony murder convictions, only one person killed.
- Under O.C.G.A. § 16-1-7(a), it was improper to sentence defendant to two felony murder counts under O.C.G.A. § 16-5-1(c) because there was only one death involved. Rhodes v. State, 279 Ga. 587, 619 S.E.2d 659 (2005).
Consecutive sentence for crimes involving two victims proper.
- As a defendant was charged with the malice murder of two victims in different counts and was found guilty on each count, the defendant was properly sentenced separately on each count to run consecutively because the killing of different persons constituted separate crimes. Hooks v. State, 284 Ga. 531, 668 S.E.2d 718 (2008), overruled on other grounds, Williams v. State, 287 Ga. 192, 695 S.E.2d 244 (2010).
Aggravated assault with intent to rob and armed robbery.
- Because all of the facts used to prove the offense of aggravated assault with intent to rob were used up in proving the armed robbery, merger was required. Mercer v. State, 289 Ga. App. 606, 658 S.E.2d 173 (2008).
Defendant's conviction for aggravated assault with intent to rob the victim was vacated because it should have merged with the conviction for armed robbery of the same victim because the offenses were predicated on the same acts of violence and each did not require proof of a fact which the other did not since no additional violence was used against the victim. Colbert v. State, 345 Ga. App. 554, 813 S.E.2d 777 (2018).
Conviction of aggravated assault and armed robbery.
- Because: (1) different facts were used to prove an aggravated assault and an armed robbery, specifically, that the armed robbery was complete after the defendant laid a handgun on the counter in the convenience store, demanded that the victim open the register, and a codefendant took money from the a register; and (2) the separate offense of aggravated assault occurred when the defendant struck the victim in the head with the gun, the offenses did not merge as a matter of fact. Thus, the separate sentences imposed for each offense were upheld, and no double jeopardy violation occurred. Garibay v. State, 290 Ga. App. 385, 659 S.E.2d 775 (2008).
Joinder of battery and obstruction of officer charges was proper because evidence of defendant's conduct in leaving the scene of the battery was relevant and pertinent to the obstruction charge. McCracken v. State, 224 Ga. App. 356, 480 S.E.2d 361 (1997).
Felony murder and felony criminal attempt to possess cocaine.
- Separate judgment of conviction and sentence for criminal attempt to possess cocaine was vacated because after the jury found the defendant guilty of felony murder while in the commission of the felony of criminal attempt to possess cocaine, and also of the felony of criminal attempt to possess cocaine, the defendant was sentenced on each charge, but the defendant could not be sentenced on both felony murder and the underlying felony when found guilty of both. Sapp v. State, 290 Ga. 247, 719 S.E.2d 434 (2011).
Joinder of sexual offenses and solicitation for murder.
- When the defendant planned to murder a child so that the child could not testify about sexual offenses, it was not error to refuse to sever the sexual charges from a solicitation to commit murder charge; joinder was based upon a connected series of acts, and there was no indication that the jury was unable to apply the law intelligently as to each offense. Borders v. State, 285 Ga. App. 337, 646 S.E.2d 319 (2007), cert. denied, No. S07C1374, 2007 Ga. LEXIS 640 (Ga. 2007).
Conviction of aggravated assault and rape.
- After completing the act of forcible intercourse (rape), defendant drew a gun again, pulled back the hammer, and threatened to shoot both victims if the victim's did not obey the defendant's further commands, this second drawing of the deadly weapon was subsequent to, and separate from, the completed offense of rape against the first victim; thus, the evidence regarding the use of force during the incident was not "used up" in the offense of rape, and the defendant could properly be convicted of aggravated assault. Ellis v. State, 181 Ga. App. 826, 354 S.E.2d 15 (1987).
Kidnapping, rape, robbery and aggravated sodomy.
- Kidnapping charge was not improperly joined with the charges of rape, robbery and aggravated sodomy where the charges were part of a continuing criminal enterprise. Smith v. State, 214 Ga. App. 631, 448 S.E.2d 906 (1994).
Convictions for aggravated battery, family violence, and family violence battery arising out of same conduct.
- Charges under both O.C.G.A. § 16-5-24(a) and (h) (aggravated battery, family violence) and O.C.G.A. § 16-5-23.1(a), (b), and (f) (family violence battery, substantial physical and visible bodily harm), which were not based on actions at different times or places or different injuries, violated a defendant's double jeopardy rights under O.C.G.A. § 16-1-7. Pierce v. State, 301 Ga. App. 167, 687 S.E.2d 185 (2009), cert. denied, No. S10C0549, 2010 Ga. LEXIS 244 (Ga. 2010).
Joinder of theft by taking with making harassing telephone calls and using telephone communication for indecent purposes.
- Trial court did not err in refusing to sever offenses for theft by taking and the telephone charges, because the evidence of each crime would be admissible in the trial of either crime if tried separately. Moss v. State, 245 Ga. App. 811, 538 S.E.2d 876 (2000).
Unrelated assaults.
- Defendant's plea to a charge arising from an earlier incident with a carpet cleaner did not preclude a prosecution for a later assault on the defendant's girlfriend because the crimes were separated in time, involved different victims, and did not arise from the same conduct; thus, O.C.G.A. § 16-1-7(b) did not require them to be brought in a single prosecution. Delph v. State, 279 Ga. App. 306, 630 S.E.2d 891 (2006).
Possession of a firearm by a convicted felon.
- Defendant was not entitled to a new jury on a trial of a possession of a firearm by a convicted felon charge as generally all charges arising out of the same conduct had to be tried in a single prosecution; although there were limited exceptions to the rule allowing, under proper circumstances, the bifurcation of a possession of a firearm by a convicted felon charge, the defendant was not entitled to a separate trial before a new jury on that charge. Walker v. State, 281 Ga. 157, 635 S.E.2d 740 (2006), cert. denied, 552 U.S. 833, 128 S. Ct. 60, 169 L. Ed. 2d 50 (2007).
Merger for concealing death.
- Appellant's merger claims cannot simply be deemed waived on appeal following the entry of a guilty plea, even if the appellant fails to raise the issue, and four of the appellant's five convictions for concealing the death of the appellant's girlfriend merged since only one violation occurred. Nazario v. State, 293 Ga. 480, 746 S.E.2d 109 (2013).
Aggravated battery charges did not merge.
- When the defendant was charged with two counts of aggravated battery, the aggravated battery counts did not merge because the evidence was sufficient for a jury to determine that the batteries occurred on separate occasions rather than during a single transaction as the expert physician testified that after the blow to the infant's head that fractured the infant's skull and caused the infant's brain to swell, the infant would not have acted normally, and both parents testified that the infant was acting normally until the day they finally took the infant to the emergency room; and the defendant testified that the marks appeared on the infant before the defendant dropped the baby out the front door onto the ground. Busby v. State, 332 Ga. App. 646, 774 S.E.2d 717 (2015).
3. Crimes Against Property
Hijacking and armed robbery.
- Defendant's convictions of hijacking a motor vehicle and armed robbery were properly entered, despite defendant's contention that the state used the same facts to establish both offenses and that defendant should have only been convicted of and sentenced for one of the offenses, as: (1) hijacking a motor vehicle was considered a separate offense and did not merge with any other offense; (2) O.C.G.A. § 16-5-44.1 superseded the double jeopardy provisions of O.C.G.A. § 16-1-7 in motor vehicle hijacking cases; (3) O.C.G.A. § 16-5-44.1(d) did not violate the prohibition against double jeopardy, since the double jeopardy clause of the Georgia Constitution did not prohibit additional punishment for a separate offense which the legislature deemed to warrant separate sanction; and (4) defendant failed to offer any evidence in support of defendant's allegation that O.C.G.A. § 16-5-44.1(d) otherwise violated defendant's double jeopardy rights. Holman v. State, 272 Ga. App. 890, 614 S.E.2d 124 (2005).
Arson and cruelty to animals.
- Defendant was properly convicted for arson in the second degree and cruelty to animals, where the essential elements of each of the crimes differed, and the state carried its burden of proving the distinct elements of each crime. Motes v. State, 189 Ga. App. 430, 375 S.E.2d 893 (1988).
Burglary and armed robbery.
- There is no prohibition against a defendant's being convicted of both burglary and a completed criminal offense, such as armed robbery, after gaining entry into the dwelling, as each offense has distinct elements. Brown v. State, 199 Ga. App. 773, 406 S.E.2d 248 (1991).
No merger of armed robbery and aggravated assault charges where defendant threatened victim with knife and took the victim's money and then at knifepoint forced the victim into the bushes, made the victim lie down, straddled the victim and threatened to stab the victim. Rhodes v. State, 221 Ga. App. 792, 470 S.E.2d 790 (1996).
Merger of aggravated assault count with armed robbery.
- Because a defendant's convictions for armed robbery (O.C.G.A. § 16-8-41(a)) and aggravated assault (O.C.G.A. § 16-5-21(a)) were based on the same conduct - the defendant's pointing a gun at the victim with the intent to rob the victim - merger was required. Therefore, the sentence for aggravated assault was vacated. Reed v. State, 293 Ga. App. 479, 668 S.E.2d 1 (2008).
Merger of aggravated assault with felony murder conviction.
- Because the crime of aggravated assault by shooting the victim with a gun was the underlying felony for the felony murder conviction, it should have merged with the felony murder conviction for sentencing purposes. Allen v. State, 307 Ga. 707, 838 S.E.2d 301 (2020).
Two counts of burglary based on one entry should have been merged.
- Because the defendant's one entry into the victim's house was committed with a dual intent to commit theft and aggravated assault, the trial court should not have imposed two separate sentences for the two burglary charges based on the two intents, and instead should have merged the burglary counts for sentencing. However, merger of an armed robbery charge was properly rejected. Ward v. State, 339 Ga. App. 621, 794 S.E.2d 246 (2016).
Merger of theft by taking, conversion, and theft by deception.
- After the defendant was convicted on 52 counts related to the defendant's theft of more than $600,000 as the operator of a Ponzi scheme, although the trial court did not err in failing to merge the defendant's convictions for theft by conversion and theft by deception into the defendant's convictions for theft by taking, because theft by taking proscribed certain criminal conduct generally, while theft by conversion and theft by deception were specific crimes, the defendant's convictions for theft by taking merged into the defendant's convictions for theft by conversion and theft by deception; thus, the defendant's sentences for theft by taking were vacated, and the case was remanded to the trial court for resentencing. Mathis v. State, 343 Ga. App. 206, 807 S.E.2d 4 (2017), cert. dismissed, No. S18C0491, 2018 Ga. LEXIS 316 (Ga. 2018).
Crimes not of same nature, class, or species.
- Charges of burglary, criminal attempt to steal motor vehicle and possession of firearm during commission of crime were not of same nature, class, or species under former Code 1933, § 26-506. Fair v. State, 129 Ga. App. 565, 200 S.E.2d 296 (1973).
Successive prosecution for financial identity fraud.
- Trial court correctly rejected the defendant's plea in bar and denied defendant's motion in autrefois convict because the defendant did not show that defendant's prosecution for two counts of financial identity fraud under O.C.G.A. § 16-9-121 was barred as an impermissible successive prosecution for the same conduct in another county by defendant's earlier conviction in that county of 33 counts of financial identity fraud. Summers v. State, 263 Ga. App. 338, 587 S.E.2d 768 (2003).
Robbery by intimidation and theft by taking.
- Defendant's convictions for robbery by intimidation and theft by taking did not violate the defendant's double jeopardy rights because the defendant obtained the money by intimidation when the defendant threatened to stab the victim, whereas the defendant obtained the victim's car without the use of intimidation. Southwell v. State, 320 Ga. App. 763, 740 S.E.2d 725 (2013).
4. Application to Other Crimes
Possession of firearm during felony.
- O.C.G.A. § 16-1-7(a), the statutory double jeopardy provision, is superseded by the provision in O.C.G.A. § 16-11-106 that offense of possession of a firearm during commission of a felony "shall be considered a separate offense." Miller v. State, 250 Ga. 436, 298 S.E.2d 509 (1983).
Offense of possession of a firearm during the commission of a felony does not merge into the accompanying felony, i.e., armed robbery, so that the defendant can be convicted of both without statutory or constitutional prohibition. Brown v. State, 199 Ga. App. 773, 406 S.E.2d 248 (1991).
Charge requiring evidence of prior felony.
- It was proper under O.C.G.A. § 16-1-7 and former O.C.G.A. § 24-9-20 (see now O.C.G.A. § 24-5-506) to try a firearms possession charge, which requires evidence of a prior felony conviction, together with a marijuana and a burglary charge. State v. Santerfeit, 163 Ga. App. 627, 295 S.E.2d 756 (1982).
When the defendant, who was arrested for speeding and driving under the influence, sought to dispose of the speeding charge by paying a fine of $99.00 to the clerk of the probate court, the defendant was not subjected to any former "prosecution" within the meaning of O.C.G.A. §§ 16-1-7 and16-1-8(b), and the trial court did not err in denying defendant's plea in bar to the charge of driving under the influence. Collins v. State, 177 Ga. App. 758, 341 S.E.2d 288 (1986).
Trial counsel was not ineffective as the defendant's guilty plea to speeding prior to the driving under the influence (DUI) of alcohol trial did not result in a conviction because the trial judge's oral announcement that the judge would accept the plea and would impose the sentence recommended by the state was not a judgment; and the trial judge did not enter the final written judgment of conviction and sentence on the guilty plea to speeding until after the DUI trial, at the same time and on the same order form as the judgment and sentence entered for the DUI offense; thus, the defendant was not subjected to any former prosecution, and the trial court would not have erred in denying the defendant's plea in bar. Hantz v. State, 337 Ga. App. 675, 788 S.E.2d 567 (2016).
After defendant charged with traffic violations and disorderly conduct pled guilty to latter, trial court's denial of defendant's plea of former jeopardy to preclude prosecution for the traffic violations was not in error. The offense of disorderly conduct for which defendant was earlier tried did not arise from the same transaction as the five traffic offenses with which defendant was also charged, as they were completed at a different time and at different locations; therefore, prosecution for the traffic offenses did not constitute double jeopardy for defendant. Boyette v. State, 172 Ga. App. 683, 324 S.E.2d 540 (1984).
DUI offense.
- Driving under the influence (DUI) offense did not arise from the same transaction as other offenses of obstructing an officer, interfering with government property, and carrying a concealed weapon, where the conduct giving rise to the other offenses did not occur until after defendant had been arrested for DUI by one officer and placed in the custody of a different officer for transportation to the sheriff's office. Harrell v. State, 196 Ga. App. 101, 395 S.E.2d 598 (1990).
Given that a charge of DUI served as the predicate act underlying a charge of serious injury by vehicle, thus constituting a lesser included crime of serious injury by vehicle, O.C.G.A. § 16-1-7(a) barred conviction of and punishment for both; hence, in light of this incongruence, defendant's DUI conviction and sentence, as well as the sentence for serious injury by vehicle, were vacated. Hannah v. State, 280 Ga. App. 230, 633 S.E.2d 800 (2006).
Prosecutions for DUI and possession of cocaine.
- After the defendant was first charged with driving under the influence and later charged with possession of cocaine, together with the passenger in the vehicle, as a codefendant, the court would reject the contention that the assistant solicitor who handled the defendant's plea proceeding with regard to the first charge was the prosecuting officer "actually handling the proceedings" and that, since this attorney did not review the file before taking the plea, it could not be said that the "prosecuting officer actually handling the case" had actual knowledge of the alleged drug violation. Hill v. State, 234 Ga. App. 173, 507 S.E.2d 3 (1998).
Speeding in both city and county as one transaction.
- When a city policeman began chasing defendant's speeding vehicle within the city limits, and a county police officer joined in the chase after the defendant left the incorporated area and entered the county, all of the offenses charged by both officers arose out of one course of conduct, i.e., there was only one transaction. Anderson v. State, 200 Ga. App. 530, 408 S.E.2d 829 (1991).
Offenses under uniform traffic citation.
- Because a uniform traffic citation was deliberately withheld from filing, and the state did not authorize or participate in the prosecution of the case, the probate court lacked authority to accept defendant's plea to the proposed charge and impose a fine, making its resulting judgment void; hence, the trial court did not err in denying defendant's plea in bar based on double jeopardy, since the probate court's void judgment could not serve as the basis for barring the subsequent indictment and prosecution of defendant in the superior court. Roberts v. State, 280 Ga. App. 672, 634 S.E.2d 790 (2006).
Denial of plea of former jeopardy held error.
- After the defendant was charged with driving with a suspended license and three counts of violation of the controlled substances act, the trial court's denial of the defendant's plea of former jeopardy to preclude prosecution for controlled substances act violations was in error since the offense of driving without a license to which the defendant pled guilty arose out of the same transaction and all offenses were known to the prosecutor at the outset. Smith v. State, 190 Ga. App. 246, 378 S.E.2d 493, aff'd, 259 Ga. 352, 381 S.E.2d 37 (1989).
Rape and child molestation.
- An accused may be prosecuted for both rape and child molestation based on the same conduct, but he may not be convicted of both. Mackey v. State, 235 Ga. App. 209, 509 S.E.2d 68 (1998).
Statutory rape and child molestation.
- Trial court properly denied the defendant's motion to dismiss charges alleging statutory rape and child molestation on jeopardy grounds as double jeopardy did not preclude the state from prosecuting defendant for both offenses, although the same conduct formed the basis for both charges. Moreover, because no corroboration was required for child molestation, the jury logically could have found, and in fact did find, the defendant guilty of molesting the victim by having sex with that victim, despite the jury's not guilty verdict on statutory rape. Maynard v. State, 290 Ga. App. 403, 659 S.E.2d 831 (2008).
Possession with intent to distribute and sale of cocaine.
- When the defendant was found guilty of possession with intent to distribute cocaine and, in a second trial, convicted of the sale of cocaine, the second trial violated procedural double jeopardy since the defendant was under continuous observation from the time of defendant's sale of cocaine through defendant's journey to a convenience store since the defendant was arrested and found to be in possession of more of the same type of drugs. Morgan v. State, 220 Ga. App. 198, 469 S.E.2d 340 (1996).
Charges of conspiracy to import marijuana and trafficking in marijuana could be joined for trial, over objection, since the charges arose from the same conduct. Bridges v. State, 195 Ga. App. 851, 395 S.E.2d 30 (1990).
False swearing and malicious prosecution.
- Defendant's convictions for false swearing under O.C.G.A. § 16-10-71, proven by evidence that defendant made false statements in an affidavit seeking an involuntary commitment order for the victim, and malicious confinement under O.C.G.A. § 16-5-43, supported by proof apart from the execution of the false affidavit, did not merge as a matter of fact. Washington v. State, 271 Ga. App. 764, 610 S.E.2d 692 (2005).
Unauthorized offers to sell.
- Because defendant's argument on appeal was a challenge to defendant's convictions for making 91 unauthorized offers to sell recorded material under O.C.G.A. § 16-8-60(b), and because an O.C.G.A. § 16-1-7(a) motion to correct or modify an illegal sentence was not an appropriate remedy to attack a conviction in a criminal case, the defendant did not properly challenge the convictions; defendant's only recourse was through habeas corpus proceedings. Rogers v. State, 314 Ga. App. 398, 724 S.E.2d 417 (2012).
Drug related offenses.
- Trial court did not err in failing to merge the counts for attempt to manufacture methamphetamine and possession of ephedrine and pseudoephedrine because the jury could have found different conduct to support each offense; the jury could have found that the defendant assembled methamphetamine ingredients with intent to manufacture and that the defendant possessed some part of those ingredients after altering the ingredients. Taylor v. State, 320 Ga. App. 596, 740 S.E.2d 327 (2013).
Because the defendant's convictions for attempt to sell oxycodone and possession with intent to distribute each required proof of a fact which the other did not, the trial court did not err in not merging the offenses and in sentencing the defendant on both. Crankshaw v. State, 336 Ga. App. 700, 786 S.E.2d 245 (2016).
Misdemeanor and felony offenses not arising from same conduct.
- Trial court properly denied the defendant's plea in bar based on double jeopardy as the misdemeanor offenses of criminal trespass, open container, and concealed weapon charges and the felony-related offenses of rape, aggravated sodomy, and making a false statement during the sexual assault investigation did not arise from the same conduct because, although the offenses occurred on the same date and close in time, the offenses took place in different locations as the rape and aggravated sodomy occurred inside the victim's apartment and the misdemeanor offenses occurred outside a separate building in the apartment complex and the state could establish each set of offenses without proving the other. Jackson v. State, 336 Ga. App. 140, 784 S.E.2d 7 (2016).
Severance
1. In General
Criteria for severance apply in capital cases.
- Criteria for severance of offenses are the same in cases in which the death penalty is sought as in other cases. Terry v. State, 259 Ga. 165, 377 S.E.2d 837 (1989).
When joinder is based on similarity of offenses, defendant is entitled to severance.
- Whenever two or more offenses have been joined for trial solely on the ground that the offenses are of the same or similar character, the defendant shall have the right under O.C.G.A. § 16-1-7(c) to severance of the offenses. Gober v. State, 247 Ga. 652, 278 S.E.2d 386 (1981); Davis v. State, 159 Ga. App. 356, 283 S.E.2d 286 (1981); Cooper v. State, 253 Ga. 736, 325 S.E.2d 137 (1985).
When severance is discretionary.
- Severance of charges of several crimes arising from same conduct under former Code 1933, § 26-506(c) lies within sound discretion of trial judge since facts in each case are likely to be unique. Dingler v. State, 233 Ga. 462, 211 S.E.2d 752 (1975).
When the offenses are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, severance lies within the discretion of the trial court since the facts in each case are likely to be unique. Bailey v. State, 157 Ga. App. 222, 276 S.E.2d 843 (1981).
When the offenses are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, the court in interests of justice may order that one or more of such charges be tried separately. Gober v. State, 247 Ga. 652, 278 S.E.2d 386 (1981).
When there is a valid reason for joinder other than similarity of the offense, severance becomes discretionary with the trial court. Davis v. State, 159 Ga. App. 356, 283 S.E.2d 286 (1981).
When the joinder is based upon the same conduct or on a series of acts connected together, severance lies within the sound discretion of the trial judge. Fluker v. State, 174 Ga. App. 890, 332 S.E.2d 34 (1985).
When the joinder is based upon the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, severance lies within the discretion of the trial judge. Smith v. State, 199 Ga. App. 410, 405 S.E.2d 107 (1991).
Complexity of evidence as affecting severance.
- When each offense charged is connected to other crimes as part of a larger scheme and evidence presented is not of such complexity as to hinder the jury from applying the law intelligently to each offense, severance is a matter of discretion with the court. Guthrie v. State, 147 Ga. App. 351, 248 S.E.2d 714 (1978).
When all three alleged offenses are part of the same conduct within the meaning of that term as used in O.C.G.A. § 16-1-7 and evidence is not of such complexity as to hinder the jury from being able to apply the law of the case intelligently to each alleged offense, the trial court does not abuse the court's discretion in denying defendant's motion to sever. Gober v. State, 247 Ga. 652, 278 S.E.2d 386 (1981).
Ability to distinguish evidence as factor.
- When the crimes joined are not of a similar kind, on a motion to sever one charge the court should consider whether, in light of the number of offenses charged and the complexity of the evidence, the fact-trier will be able to distinguish the evidence and apply the law intelligently to each offense. Smith v. State, 186 Ga. App. 303, 367 S.E.2d 573 (1988).
Balancing interests of accused with those of state.
- Former Code 1933, § 26-506(c) showed that on question of severance trial court should have discretion and that interests of accused are to be balanced with interests of state. Jarrell v. State, 234 Ga. 410, 216 S.E.2d 258 (1975).
Severance made in interest of justice involves balancing of interests of accused with interests of state. Fowler v. State, 155 Ga. App. 76, 270 S.E.2d 297 (1980).
Interests of justice to be considered.
- Only test under former Code 1933, § 26-506(c) was whether the interests of justice will be served by separate trials. The judge may order charges tried separately but the judge was not required to do so, if in the judge's opinion, the interests of justice will not be served thereby. Henderson v. State, 227 Ga. 68, 179 S.E.2d 76 (1970), sentence vacated, 408 U.S. 938, 92 S. Ct. 2868, 33 L. Ed. 2d 758 (1972); Slocum v. State, 230 Ga. 762, 199 S.E.2d 202 (1973); Mathis v. State, 231 Ga. 401, 202 S.E.2d 73 (1973).
Where same conduct of accused can establish more than one crime, judge may order charges tried separately but the judge is not required to do so if, in the judge's opinion, the interests of justice will not be served thereby. Pass v. State, 227 Ga. 730, 182 S.E.2d 779 (1971).
"Interest of justice" criterion is discretionary with trial judge. Jarrell v. State, 234 Ga. 410, 216 S.E.2d 258 (1975).
It is merely permissive for court to order separate trials in interest of justice. Henderson v. State, 227 Ga. 68, 179 S.E.2d 76 (1970), sentence vacated, 408 U.S. 938, 92 S. Ct. 2868, 33 L. Ed. 2d 758 (1972).
Prejudice to defendant as factor.
- Underlying consideration under former Code 1933, § 26-506(c) concerned the degree of prejudice which might result from joint disposition. Wilson v. State, 245 Ga. 49, 262 S.E.2d 810 (1980).
Former Code 1933, § 26-506 did not require that motions to sever be in writing. Wigley v. State, 140 Ga. App. 145, 230 S.E.2d 108 (1976).
2. Application
Facts justifying refusal of motion for severance.
- Judge may refuse motion for severance of trial of multiple charges where crimes alleged were part of a continuous transaction conducted over a relatively short time, and from the nature of the entire transaction, it would be almost impossible to present to jury evidence of one of the crimes without also permitting evidence of the other. Stewart v. State, 239 Ga. 588, 238 S.E.2d 540 (1977).
When all the offenses formed a series of acts closely connected in time, involving common witnesses and evidence, refusal to sever the offenses was not an abuse of discretion. Lane v. State, 210 Ga. App. 738, 437 S.E.2d 479 (1993).
What constitutes single scheme or plan.
- When separate crimes are committed in order to accomplish a single criminal purpose, the crimes are said to constitute parts of a single scheme or plan, even if the crimes are somewhat removed from one another in terms of time and place. Bailey v. State, 157 Ga. App. 222, 276 S.E.2d 843 (1981).
Escape may, under certain circumstances, be one of a series of acts connected together and joined in a multi-count indictment. Carter v. State, 155 Ga. App. 840, 273 S.E.2d 417 (1980).
Scheme encompassing burglary, motor vehicle theft and armed robbery.
- When scheme and purpose to obtain narcotics which encompassed burglary, motor vehicle theft and armed robbery within span of a few hours is clearly shown by evidence, interests of justice would not be served by ordering separate trials. Goughf v. State, 232 Ga. 178, 205 S.E.2d 844 (1974).
Robbery by force and robbery by sudden snatching.
- Trial court did not err in denying defendant's motion to sever charges for robbery by force and robbery by sudden snatching. Smith v. State, 225 Ga. App. 738, 484 S.E.2d 773 (1997).
When overruling of motion to sever is abuse of discretion.
- When separate crimes do not arise out of same conduct, do not involve same victims or witnesses, and evidence of one would not be admissible on trial of the other, judgment of trial court overruling motion to sever is error constituting an abuse of discretion. Booker v. State, 231 Ga. 598, 203 S.E.2d 194 (1974).
Trial court did not abuse discretion in denying motion to sever count alleging possession of a firearm by a convicted felon from counts alleging murder and aggravated assault. Pope v. State, 168 Ga. App. 846, 310 S.E.2d 575 (1983).
When the defendant and others robbed and fatally shot the first victim, who was making a night deposit, then robbed a bartender at gunpoint a month later, it was not error to deny the defendant's motion for severance of the crimes; the crimes involved the same core group of participants committing armed robberies with similar characteristics over a short period of time. Simmons v. State, 282 Ga. 183, 646 S.E.2d 55 (2007).
Severance of one count in indictment not allowed.
- When codefendants A and B were charged with aggravated assault, armed robbery, and criminal damage to property and B was also charged with aggravated assault on B's spouse in the same indictment, a motion by A to sever the latter charge against B from the rest of the charges in the indictment was properly denied; A's rights in regard to that count were limited to a motion to sever A's trial under O.C.G.A. § 17-8-4. Durden v. State, 219 Ga. App. 732, 466 S.E.2d 641 (1995).
Failure to sever count not error. Boyd v. State, 168 Ga. App. 246, 308 S.E.2d 626 (1983).
Trial court did not err in denying defendant's motion for severance of the counts alleging operation a motor vehicle after revocation of defendant's driver's license as an habitual violator and leaving the scene of an accident. Spradlin v. State, 174 Ga. App. 658, 331 S.E.2d 50 (1985).
When the purpose of joinder was not to bolster any witness' credibility, but there was a rational connection shown by the evidence between the battery, terroristic threats, and damage to property on the one hand, and defendant's possession of marijuana on the other, the denial of the severance motion as to the marijuana charge was not an abuse of discretion. Smith v. State, 186 Ga. App. 303, 367 S.E.2d 573 (1988).
Trial court properly denied a defendant's motion to sever two armed robbery charges; in both incidents, which occurred only three days apart, the defendant began a conversation with the victim at a public facility, took the victim's truck keys and held the keys until the victim gave the defendant money, and canvassed the victim's truck for other items to steal. Davis v. State, 287 Ga. App. 410, 651 S.E.2d 518 (2007).
Failure of the trial court to exercise discretion on the issue of severance of charges of possession of a firearm during commission of a crime and the subject drug charge, and the absence of any waiver by defendant of double jeopardy violated defendant's procedural double jeopardy protections. Asberry v. State, 221 Ga. App. 809, 472 S.E.2d 562 (1996).
3. Sentencing
Sentences for offenses not considered.
- Statutes pertaining to lesser included offenses and multiple prosecutions for the same conduct do not purport to make any offense a greater offense, either as a matter of law or fact, solely because violation thereof mandates or otherwise results in the imposition of a greater sentence, or to make any offense a lesser included offense merely because a lesser sentence was statutorily authorized for its violation. Hancock v. State, 210 Ga. App. 528, 437 S.E.2d 610 (1993).
Suspension of a driver's license at an administrative hearing is not punishment, nor is the hearing a prosecution, for the purposes of double jeopardy. Martinez v. State, 221 Ga. App. 483, 471 S.E.2d 551 (1996).
Defendant's obligation to object to sentencing.
- It is incumbent upon a defendant to make an objection at sentencing or to make a proper motion at sentencing if sentenced in violation of O.C.G.A. § 16-1-7. Jackson v. State, 254 Ga. App. 562, 562 S.E.2d 847 (2002).
Sentences for both aggravated assault and rape did not violate the defendant's protection against double jeopardy, where even if defendant had departed from the victim's apartment prior to the forcible sexual penetration of her, he still would have been guilty of the aggravated assault, because he had pointed a pistol at the victim through the window and held it while he led her from room to room before the rape. Taylor v. State, 177 Ga. App. 624, 340 S.E.2d 263 (1986).
No merger of underlying felony into vacated conviction.
- Underlying felony does not merge as a matter of law into vacated felony murder conviction so that the trial court did not err given the extant malice murder conviction, in imposing separate sentences for aggravated assault and possession of a firearm. Malcolm v. State, 263 Ga. 369, 434 S.E.2d 479 (1993).
When defendant was convicted of felony murder and vehicular homicide with the underlying offense of driving under the influence, and vehicular homicide was vacated as a matter of law, the underlying traffic offense did not merge into the felony murder, and defendant was properly sentenced for driving under the influence. Diamond v. State, 267 Ga. 249, 477 S.E.2d 562 (1996).
Convictions merged for sentencing.
- Georgia statutory law prohibited multiple sentences upon multiple convictions for the same conduct; thus, defendant's convictions for aggravated assault with intent to rob and possession of a firearm during the commission of that aggravated assault merged into the armed robbery conviction for sentencing purposes. Cutkelvin v. State, 258 Ga. App. 691, 574 S.E.2d 883 (2002).
Harmless error in failure to merge.
- Defendant's convictions for aggravated assault and aggravated battery should have been merged but the error was harmless because the defendant would still have been sentenced for aggravated battery. Lonon v. State, 348 Ga. App. 527, 823 S.E.2d 842 (2019).
Sentencing on two lesser offenses without specifying which served as foundation.
- Trial court erred in sentencing the defendant on the lesser offenses of reckless driving and driving under the influence, and also sentencing defendant on the greater offense of homicide by vehicle in the first degree, which included the lesser offenses. Had the jury revealed which of the lesser offenses served as the foundation for the homicide verdict, a sentence on the remaining lesser offense might have been appropriate, but as such information did not appear in the record, the defendant could not be sentenced for either of the lesser included offenses of violation of O.C.G.A. §§ 40-6-390 and40-6-391. McNabb v. State, 180 Ga. App. 723, 350 S.E.2d 314 (1986).
Felony murder and aggravated assault sentence.
- Defendant charged with two counts of felony murder consisting of underlying felonies involving aggravated assault and being a first offender probationer in possession of a firearm could not be sentenced on both felony murder convictions, as the act of killing a single victim meant that defendant could be sentenced on either count of felony murder but not both. Harris v. State, 274 Ga. 835, 561 S.E.2d 73 (2002).
Felony murder and malice murder.
- Defendant could not be sentenced for both malice and felony murder under O.C.G.A. § 16-1-7; accordingly, the separate judgment of conviction and sentence for felony murder had to be vacated. Nix v. State, 280 Ga. 141, 625 S.E.2d 746 (2006).
Armed robbery and aggravated assault.
- O.C.G.A. § 17-10-7(d) did not require the imposition of concurrent sentences for a defendant's convictions of armed robbery and aggravated assault. O.C.G.A. § 16-1-7 authorized separate sentences for the two crimes charged in the same prosecution because the crimes were not included offenses. Redden v. State, 294 Ga. App. 879, 670 S.E.2d 552 (2008).
Separate sentences for drug trafficking offenses.
- Trial court did not err under O.C.G.A. §§ 16-1-6(2) and16-1-7(a)(1) by sentencing the defendant separately for trafficking in methamphetamine, in violation of O.C.G.A. § 16-13-31, and trafficking in ecstasy, in violation of O.C.G.A. § 16-13-31.1, when the substance which was found in the defendant's vehicle tested positive for both methamphetamine and ecstasy as there was no evidence that chemical compounds or elements were shared between the drugs. Ahmad v. State, 312 Ga. App. 703, 719 S.E.2d 563 (2011).
Merger of offenses for sentencing proper.
- Defendant was not improperly convicted of more than one offense arising from the same conduct when, at sentencing, those offenses were merged into one offense. Haugland v. State, 253 Ga. App. 423, 560 S.E.2d 50 (2002).
Although the state used up its evidence to prove defendant's guilt on one count to prove another, causing the offenses to merge as a matter of fact, any error in sentencing was harmless, because defendant received no separate sentence. Mitchell v. State, 255 Ga. App. 585, 565 S.E.2d 889 (2002).
Only one sentence when only one victim.
- Trial court erred in sentencing the defendant to separate terms of life imprisonment for malice murder and felony murder since there was only one victim. Ward v. State, 292 Ga. 637, 740 S.E.2d 112 (2013).
Although the prescriptions that the defendant picked up on one occasion were purportedly for two different patients, the defendant's single act of going to the pharmacy to pick up the prescriptions on that date was the same conduct for the purpose of deciding whether the offenses merged; thus, Counts 1 and 2 of obtaining a controlled substance by fraud merged, and the trial court erred in imposing separate sentences as to those counts. Hopkins v. State, 328 Ga. App. 844, 761 S.E.2d 896 (2014).
State required to make election when charging defendant with multiple counts of same crime.
- Trial court erred in sentencing the defendant on two additional counts of incest because the acts alleged in Counts 5 and 6 were the same and both counts averred the exact dates of the offenses; thus, the state was required to make an election when the state charged the defendant with multiple counts of the same crime. Jones v. State, 333 Ga. App. 796, 777 S.E.2d 480 (2015).
OPINIONS OF THE ATTORNEY GENERAL
Separate prosecutions for municipal and state law prosecutions.
- An accused arrested for separate non-included offenses arising out of a single transaction, which violate municipal ordinances and state law respectively, may be prosecuted first in the recorder's court for the municipal ordinance violations, and then transferred to the superior court to be prosecuted for the separate state violations, without violating statutory or constitutional double jeopardy prohibitions. 1986 Op. Att'y Gen. No. U86-32.
RESEARCH REFERENCES
Am. Jur. 2d.
- 21 Am. Jur. 2d, Criminal Law, § 269 et seq.
C.J.S.- 22 C.J.S., Criminal Law: Substantive Principles, § 12 et seq. 22A C.J.S. Criminal Procedure and Rights of the Accused, 656 et seq., 666 et seq.
ALR.
- Conviction or acquittal of larceny as bar to prosecution for burglary, 19 A.L.R. 626.
Pendency in one county of charge of larceny as bar to subsequent charge in another county of offense which involves both felonious breaking and felonious taking of same property, 19 A.L.R. 636.
Conviction or acquittal upon charge of murder of, or assault upon, one person as bar to prosecution for like offense against another person at the same time, 20 A.L.R. 341; 113 A.L.R. 222.
Forgery of names of several individuals to the same instrument as more than one offense, 33 A.L.R. 562.
Acquittal or conviction of one offense in connection with operation of automobile as bar to prosecution for another, 44 A.L.R. 564; 172 A.L.R. 1053.
Continuous transaction constituting a complete offense in each county or district as constituting more than one offense, 73 A.L.R. 1511.
Acquittal or conviction of assault and battery as bar to prosecution for rape, or assault with intent to commit rape, based on same transaction, 78 A.L.R. 1213.
Prosecution for robbery of one person as bar to subsequent prosecution for robbery of another person committed at the same time, 51 A.L.R.3d 693.
Single act affecting multiple victims as constituting multiple assaults or homicides, 8 A.L.R.4th 960.
Double jeopardy: various acts of weapons violations as separate or continuing offense, 80 A.L.R.4th 631.
Conviction or acquittal in federal court as bar to prosecution in state court for state offense based on same facts - Modern view, 97 A.L.R.5th 201.
What constitutes accused's consent to court's discharge of jury or to grant of motion for mistrial which will constitute waiver of former jeopardy plea - silence or failure to object or protest, 103 A.L.R.6th 137.