(Code 1933, § 26-507, 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.
Law reviews.- For survey article on criminal law and procedure for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 117 (2003). For comment, "Grady v. Corbin: An Unsuccessful Effort to Define Same Offense," see 25 Ga. L. Rev. 143 (1990).
JUDICIAL DECISIONSANALYSIS
General Consideration
Constitutionality of subsection (c).
- Statutes such as former Code 1933, § 26-507(c) (see now O.C.G.A. § 16-1-8(c)) can be enacted by the General Assembly without contravening Ga. Const. 1976, Art. VI, Sec. IV, Para. I (see now Ga. Const. 1983, Art. VI, Sec. IV, Para. I), which endowed the superior courts with exclusive jurisdiction over trial of capital felonies. Dorsey v. State, 237 Ga. 876, 230 S.E.2d 307 (1976).
History of section.
- See Marchman v. State, 132 Ga. App. 677, 209 S.E.2d 88 (1974).
Rationale behind bar to successive prosecutions is to prevent harassment of accused. State v. White, 145 Ga. App. 730, 244 S.E.2d 579 (1978).
First policy underlying double jeopardy bar is to prevent harassment of accused by successive prosecutions or threat of successive prosecutions. 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); Marchman v. State, 234 Ga. 40, 215 S.E.2d 467 (1975).
Former Code 1933, § 26-507 prevents accused from being unduly harassed or threatened by successive criminal prosecutions. Dorsey v. State, 237 Ga. 876, 230 S.E.2d 307 (1976).
Construed with federal and state constitutions.
- Former Code 1933, § 26-507 comports with dimensions of double jeopardy clause of federal and state Constitutions. Jones v. State, 232 Ga. 324, 206 S.E.2d 481 (1974).
Former 1968 Criminal Code extended double jeopardy proscription beyond those contained in the United States and Georgia Constitutions. Marchman v. State, 234 Ga. 40, 215 S.E.2d 467 (1974).
Double jeopardy questions are 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) extended proscription of double jeopardy beyond that provided for in the United States and Georgia Constitutions. Therefore, questions of double jeopardy in Georgia must now be determined under proscriptions combined in 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 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. §§ 16-1-6,16-1-7, and16-1-8, 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).
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).
Former Code 1933, § 26-507 was a procedural statute as distinguished from a jurisdictional statute. Dorsey v. State, 237 Ga. 876, 230 S.E.2d 307 (1976).
"Previous prosecution" construed.
- 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 the defendant. State v. Smith, 185 Ga. App. 694, 365 S.E.2d 846 (1988).
When defendant is placed in 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. Turner v. State, 152 Ga. App. 354, 262 S.E.2d 618 (1979).
Plea of guilty on an indictment or complaint with the plea's 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).
Double jeopardy was violated when the trial court improperly terminated defendant's first trial after the first witness was sworn and by resetting the trial before a different judge. Puplampu v. State, 257 Ga. App. 5, 570 S.E.2d 83 (2002).
No jeopardy if trial had not commenced.
- When the transcript in superior court on the plaintiff's plea in bar indicated that the probate judge who presided over the initial proceeding was hearing motions when the witnesses were sworn, rather than commencing trial, the superior court did not err in finding that the trial never commenced, and jeopardy had not attached. Henderson v. State, 236 Ga. App. 72, 510 S.E.2d 879 (1999).
Based on testimony provided by a court reporter that a jury was never sworn prior to the day the defendant's trial started, jeopardy never attached. Hall v. State, 282 Ga. App. 562, 639 S.E.2d 341 (2006).
Because jury was never administered oath, the jury's verdict acquitting the defendant of malice murder but convicting him of other charges was a nullity and defendant's double jeopardy plea on the malice murder charge was properly denied. Spencer v. State, 281 Ga. 533, 640 S.E.2d 267, cert. denied, 551 U.S. 1103, 127 S. Ct. 2914, 168 L. Ed. 2d 243 (2007).
"Postponement" construed.
- Postponement, like a continuance, is not a "termination" of the proceedings within the meaning of O.C.G.A. § 16-1-8(a) if the trial is resumed before the same jury. Knight v. State, 197 Ga. App. 250, 398 S.E.2d 202 (1990).
Procedural double jeopardy prevents successive prosecutions for the same offense; it does not prevent prosecutions for offenses which are separate and similar to a prior prosecuted offense. Loden v. State, 199 Ga. App. 683, 406 S.E.2d 103 (1991).
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).
Defendant's federal prosecution was not a bar to defendant's state prosecution since the defendant's federal convictions required proof that the defendant had counterfeited currency, but that proof was not required in the state charges of trafficking in cocaine and possession of cocaine with intent to distribute. McAlister v. State, 236 Ga. App. 609, 512 S.E.2d 53 (1999).
Prosecution permitted after guilty plea in federal action.
- Georgia's statutory law governing successive prosecutions for crimes that violate both state and federal law did not prohibit the State of Georgia from prosecuting the defendant for trafficking in methamphetamine after the defendant, who was also indicted in federal court on crimes stemming from the same set of facts, reached a plea agreement in federal court pursuant to which the defendant pled guilty to a weapons charge in exchange for the dismissal of the pending drug charges. State v. Adams, Ga. App. , 846 S.E.2d 148 (2020).
No double jeopardy if federal offenses required proof of fact state offenses did not.- Because the federal offense of theft of medical services required proof of a fact not required by the four state offenses, malice murder, felony murder, practicing medicine without a license and aggravated battery, and the four state offenses each required proof of a fact that the federal offense did not, the state's prosecution of the defendant for the state offenses for which the defendant was indicted was not barred. Roberts v. State, Ga. , S.E.2d (Aug. 24, 2020).
Each ground for bar sufficient.
- O.C.G.A. § 16-1-8(b)(1) provides three distinct grounds for barring a subsequent prosecution where the former prosecution resulted in a conviction or acquittal, and any of the three is sufficient to establish the bar. McCannon v. State, 252 Ga. 515, 315 S.E.2d 413 (1984).
Multiple accusations and indictments not barred.
- 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).
Trial on subsequent indictment not barred by earlier indictments without trial.
- Since the jury was never impaneled and sworn to hear the trial of defendant on the original accusation, defendant was never placed in jeopardy as to that accusation, and the defendant did not face a repeated prosecution simply because the defendant was to be tried on a subsequent indictment. Cochran v. State, 176 Ga. App. 58, 335 S.E.2d 165 (1985).
Pendency of a prior indictment for the same offense based on the same facts for which the defendant was arraigned on and entered a plea did not place the defendant in jeopardy, and the defendant did not face a repeated prosecution simply because of being tried on a subsequent indictment. Hubbard v. State, 225 Ga. App. 154, 483 S.E.2d 115 (1997).
Jeopardy did not attach to court proceedings which occurred before a proper accusation was filed. Roberts v. State, 171 Ga. App. 131, 319 S.E.2d 42 (1984).
Suspension of a driver's license at an administrative hearing was not punishment, nor was the hearing a prosecution for the purposes of double jeopardy, thus, a subsequent criminal prosecution for driving under the influence was not barred. Nolen v. State, 218 Ga. App. 819, 463 S.E.2d 504 (1995), cert. denied, 518 U.S. 1018, 116 S. Ct. 2550, 135 L. Ed. 2d 1070 (1996); Martinez v. State, 221 Ga. App. 483, 471 S.E.2d 551 (1996).
Payment of the fee required for reinstatement of a driver's license after it was suspended following an arrest for driving under the influence was not punishment and did not bar a subsequent prosecution for driving under the influence. Thompson v. State, 229 Ga. App. 526, 494 S.E.2d 306 (1997); Morgan v. State, 229 Ga. App. 861, 495 S.E.2d 138 (1998).
Violation of plea agreement.
- Defendant relinquished defendant's double jeopardy rights when defendant failed to testify truthfully at the trial of defendant's codefendant per the negotiated plea agreement. A defendant can not use the double jeopardy clause to shield defendant from the consequences of failure to live up to an agreement with the prosecutor. Brown v. State, 261 Ga. App. 115, 582 S.E.2d 13 (2003).
Waiver of double jeopardy defense.
- Although the procedural bar against double jeopardy 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 for the criminal act. McClure v. State, 179 Ga. App. 245, 345 S.E.2d 922 (1986).
Waiver of right to plead former jeopardy.
- When the defendant failed to assert a plea of former jeopardy before the defendant's case was called for retrial, the defendant waived the right to such plea based on any abuse of discretion in declaring a mistrial at the first trial. Ramirez v. State, 217 Ga. App. 120, 456 S.E.2d 657 (1995).
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).
When the first jury hung, additional charges may not be brought as penalty.
- When the 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).
Juvenile proceedings.
- While the constitutional protections against double jeopardy apply to juvenile proceedings, the additional and expanded statutory protections afforded by O.C.G.A. § 16-1-8(a)(2) do not rise to the level of "those common law jurisprudential principles which experience and reason have shown are necessary to give the accused the essence of a fair trial." In re S.L.H., 205 Ga. App. 278, 422 S.E.2d 43, cert. denied, 205 Ga. App. 900, 422 S.E.2d 43 (1992).
Effect of failure to prosecute.
- While O.C.G.A. § 16-1-7(b) requires prosecution of a crime and that crime is not prosecuted, subsequent prosecution is barred because that crime is one "with which the accused should have been charged on the former prosecution" under O.C.G.A. § 16-1-8(1)(b). McCannon v. State, 252 Ga. 515, 315 S.E.2d 413 (1984).
Superseding indictment.
- When a defendant was originally indicted under O.C.G.A. § 16-8-60(a), but was later indicted under § 16-8-60(b) instead, the superseding indictment did not subject the defendant to double jeopardy; no jeopardy ever attached to the first indictment on which the trial court entered an order of nolle prosequi. Hayward-El v. State, 284 Ga. App. 125, 643 S.E.2d 242 (2007).
Refiling appropriate where action was dismissed without prejudice.
- When the trial court's dismissal for "want of prosecution" was without prejudice, the state's refiling of the accusation was appropriate. State v. Roca, 203 Ga. App. 267, 416 S.E.2d 836 (1992).
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's 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).
Civil federal forfeiture action was neither punishment nor criminal for purposes of the double jeopardy clause. Battista v. State, 223 Ga. App. 369, 477 S.E.2d 665 (1996).
Motion to suppress heard after jury is impaneled and sworn.
- In defendant's motion to suppress, which defendant insisted on raising at trial and failed to ask for a hearing before trial, although the state would have been wise not to suggest impaneling and swearing the jury beforehand, defendant readily consented to this arrangement, thus defendant's contention that the state had no right to this appeal because the motion to suppress was heard after the jury was impaneled and sworn is incorrect. State v. Smalls, 203 Ga. App. 283, 416 S.E.2d 531 (1992).
Effect of trial court's lack of jurisdiction after jury has begun deliberations.
- In a prosecution for shoplifting and while the jury was deliberating, the state court trial judge was informed that defendant had three prior convictions for shoplifting and dismissed the case for lack of jurisdiction; thus, the trial was a nullity and double jeopardy would not prevent a retrial. State v. Sterling, 244 Ga. App. 328, 535 S.E.2d 329 (2000).
Double jeopardy plea denied where defendant impliedly consented to grant of mistrial.
- Although defense counsel had an opportunity to raise an objection after the court announced its intention to excuse the jurors and before the jurors were returned to the courtroom, counsel failed to do so; therefore, the trial court was authorized to find that defendant, through counsel, impliedly consented to the grant of a mistrial and the judge's plea of double jeopardy made during trial was properly denied. Howell v. State, 266 Ga. App. 480, 597 S.E.2d 546 (2004).
Denial of the defendant's plea in bar on double jeopardy grounds was directly appealable. Etienne v. State, 298 Ga. App. 149, 679 S.E.2d 375 (2009).
Trial court's refusal to permit the defendant to cross-examine the prosecutor at a hearing on the defendant's plea of double jeopardy amounted to legal error, as such not only amounted to a violation of the defendant's right to confrontation, but also foreclosed the opportunity for the defendant to prove whether the prosecutor intended to goad the defendant into moving for a mistrial. Wright v. State, 284 Ga. App. 169, 643 S.E.2d 538 (2007).
Appealability.- Denial of the defendant's statutory double jeopardy claim against successive prosecution was directly appealable under the collateral order doctrine. Roberts v. State, Ga. , S.E.2d (Aug. 24, 2020).
Cited in Rowland v. State, 124 Ga. App. 494, 184 S.E.2d 494 (1971); Jones v. Anderson, 404 F. Supp. 182 (S.D. Ga. 1974); Bennett v. State, 136 Ga. App. 806, 222 S.E.2d 207 (1975); Parham v. State, 137 Ga. App. 498, 224 S.E.2d 485 (1976); Daughtrey v. State, 138 Ga. App. 504, 226 S.E.2d 773 (1976); Banks v. State, 237 Ga. 325, 227 S.E.2d 380 (1976); Barner v. State, 139 Ga. App. 50, 227 S.E.2d 874 (1976); Shaw v. State, 239 Ga. 690, 238 S.E.2d 434 (1977); State v. Bolton, 144 Ga. App. 797, 242 S.E.2d 378 (1978); State v. Gilder, 145 Ga. App. 731, 245 S.E.2d 3 (1978); Barber v. State, 146 Ga. App. 523, 246 S.E.2d 510 (1978); Ricketts v. Williams, 242 Ga. 303, 248 S.E.2d 673 (1978); Morrow v. State, 147 Ga. App. 395, 249 S.E.2d 110 (1978); Dowdy v. State, 148 Ga. App. 498, 251 S.E.2d 571 (1978); State v. Gilmer, 154 Ga. App. 673, 270 S.E.2d 25 (1980); Chatham v. State, 155 Ga. App. 154, 270 S.E.2d 274 (1980); Horne v. State, 155 Ga. App. 851, 273 S.E.2d 193 (1980); Pate v. State, 158 Ga. App. 395, 280 S.E.2d 414 (1981); Godfrey v. State, 248 Ga. 616, 284 S.E.2d 422 (1981); Waddell v. State, 160 Ga. App. 743, 288 S.E.2d 90 (1981); State v. Abdi, 162 Ga. App. 20, 288 S.E.2d 772 (1982); Buford v. State, 162 Ga. App. 498, 291 S.E.2d 256 (1982); Bryant v. State, 163 Ga. App. 872, 296 S.E.2d 168 (1982); Benford v. State, 164 Ga. App. 733, 298 S.E.2d 39 (1982); Potts v. Zant, 575 F. Supp. 374 (N.D. Ga. 1983); Blount v. State, 169 Ga. App. 215, 312 S.E.2d 197 (1983); Zolun v. State, 169 Ga. App. 707, 314 S.E.2d 672 (1984); Welch v. State, 172 Ga. App. 476, 323 S.E.2d 622 (1984); B.J.L. v. State, 173 Ga. App. 317, 326 S.E.2d 519 (1985); Howard v. State, 173 Ga. App. 346, 326 S.E.2d 546 (1985); State v. Martin, 173 Ga. App. 370, 326 S.E.2d 558 (1985); McCrary v. State, 254 Ga. 282, 329 S.E.2d 473 (1985); Waters v. State, 177 Ga. App. 374, 339 S.E.2d 608 (1985); Lemon v. State, 177 Ga. App. 744, 341 S.E.2d 236 (1986); Hogan v. State, 178 Ga. App. 534, 343 S.E.2d 770 (1986); Clarington v. State, 178 Ga. App. 663, 344 S.E.2d 485 (1986); State v. Whitlock, 179 Ga. App. 460, 346 S.E.2d 896 (1986); Thomas v. State, 185 Ga. App. 500, 364 S.E.2d 630 (1988); Williams v. State, 258 Ga. 305, 369 S.E.2d 232 (1988); Price v. State, 187 Ga. App. 239, 370 S.E.2d 6 (1988); Armfield v. State, 259 Ga. 43, 376 S.E.2d 369 (1989); Alexander v. State, 192 Ga. App. 211, 384 S.E.2d 436 (1989); Paquin v. Town of Tyrone, 261 Ga. 418, 405 S.E.2d 497 (1991); Wilson v. State, 199 Ga. App. 900, 406 S.E.2d 293 (1991); Moss v. State, 200 Ga. App. 253, 407 S.E.2d 477 (1991); Merrill v. State, 201 Ga. App. 671, 411 S.E.2d 750 (1991); Duncan v. State, 206 Ga. App. 407, 425 S.E.2d 307 (1992); Moore v. State, 207 Ga. App. 673, 428 S.E.2d 678 (1993); Jackett v. State, 209 Ga. App. 112, 432 S.E.2d 586 (1993); Andrew v. State, 216 Ga. App. 819, 456 S.E.2d 227 (1995); State v. Lane, 218 Ga. App. 126, 460 S.E.2d 550 (1995); Bair v. State, 250 Ga. App. 226, 551 S.E.2d 84 (2001); Lackes v. State, 274 Ga. 297, 553 S.E.2d 582 (2001); State v. Heggs, 252 Ga. App. 865, 558 S.E.2d 41 (2001); Tremelling v. State, 263 Ga. App. 418, 587 S.E.2d 785 (2003); Usher v. State, 290 Ga. App. 710, 659 S.E.2d 920 (2008); Evans v. State, 293 Ga. App. 371, 667 S.E.2d 183 (2008); Strickland v. State, 300 Ga. App. 898, 686 S.E.2d 486 (2009); Gibson v. State, 319 Ga. App. 627, 737 S.E.2d 728 (2013); State v. Leatherwood, 326 Ga. App. 730, 757 S.E.2d 434 (2014).
Offenses Arising from Same Conduct
Effect of guilty plea to some, but not all, of multiple offenses.
- 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).
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).
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 the recorder's court was aware of all the pending charges. State v. Hill, 333 Ga. App. 785, 777 S.E.2d 265 (2015).
Prior plea agreement with defendant barred reindictment.
- Although the trial court correctly found that the defendant's subsequent prosecution for kidnapping in Fulton County was not barred on statutory double jeopardy grounds because there had been no conviction or acquittal in the former prosecution of that charge in Clayton County, the state was barred from reindicting the defendant based on the state's prior plea agreement with the defendant; thus, the defendant's plea in bar and motion to dismiss the Fulton County charges was improperly denied. Arnold v. State, 352 Ga. App. 777, 835 S.E.2d 759 (2019).
Separate prosecutions for greater and included offenses.
- O.C.G.A. § 16-1-8(b) governs cases in which the state brought separate prosecutions for a greater and included offense in violation of O.C.G.A. § 16-1-7(b). State v. LeMay, 186 Ga. App. 146, 367 S.E.2d 61 (1988).
Legal effect of severance.
- Severance not equivalent to finding that crimes did not arise out of same transaction or occurrence. Lindsey v. State, 234 Ga. 874, 218 S.E.2d 585 (1975).
Determining number of offenses when same act violates two statutes.
- When same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one for purposes of the 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).
State's option upon dismissal of one of several offenses arising from same course of action.
- When more than one offense arises out of same course of action and at same time, upon being faced with dismissal of one offense, the state has the option of taking the appeal from action of the 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 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).
Bifurcated trial.
- Defendant's double jeopardy rights were not barred by holding a bifurcated trial as requested and trying defendant first on a malice murder charge, and then in a separate, second phase on a felony murder charge, as the malice murder proceeding did not involve a former prosecution as required for attachment of double jeopardy principles; rather, the bifurcation of the trial meant the malice murder and felony murder charges were tried at separate phases of the same proceeding. Jones v. State, 276 Ga. 663, 581 S.E.2d 546 (2003).
Multiple accusations and indictments.
- Even assuming arguendo that the defendant's position that O.C.G.A. § 40-6-395 set out two distinct offenses, wilful failure to stop and fleeing and eluding a police officer, the defendant was tried, first in a bench trial and again on remand after an appeal, on an accusation charging the defendant with fleeing and eluding an officer and was found guilty and sentenced both times for fleeing and eluding; hence, because the defendant was not tried on the offense of wilful failure to stop, the defendant's contention that double jeopardy considerations prohibited a jury trial on that charge, was moot. Harbuck v. State, 280 Ga. 775, 631 S.E.2d 351 (2006).
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).
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).
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).
Possession of illegal drug is crime separate and distinct from illegal sale of that same substance. Morgan v. State, 168 Ga. App. 310, 308 S.E.2d 583 (1983).
Conspiracy to import cocaine not lesser included offense of possession of cocaine.
- When the crime charged in Florida was the conspiracy to import cocaine into a customs district of the United States, and the substantive crime charged in Georgia was the actual and knowing possession of more than 400 grams of cocaine, the conspiracy charge and conviction in Florida was not a lesser included offense to the crime charged in Georgia. Brown v. State, 181 Ga. App. 795, 354 S.E.2d 3 (1987).
Felony murder charge predicated on manufacturing meth barred by federal charge.
- Defendant's federal charge of attempt to manufacture meth did not require proof of facts additional to those required in the state case of felony murder predicated on manufacturing meth, meeting the elements of O.C.G.A. § 16-1-8(c) (statutory double jeopardy); the state's charges of manufacturing meth and felony murder were barred. Calloway v. State, 303 Ga. 48, 810 S.E.2d 105 (2018).
Requirement of concurrent jurisdiction met.
- Threshold requirement of concurrent jurisdiction was met in the defendant's state prosecution because the Georgia crimes of manufacturing, delivering, or selling a controlled substance and attempt, O.C.G.A. §§ 16-13-30(a) and16-13-33, were counterparts to the defendant's federal convictions under 21 U.S.C. §§ 841(b)(1)(C) and 846. Calloway v. State, 303 Ga. 48, 810 S.E.2d 105 (2018).
Underlying felony is same offense as felony murder for double jeopardy purposes.
- As felony murder is defined under Georgia law, 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).
Once state tried and convicted petitioner for kidnapping, it was barred from prosecuting petitioner for felony murder only if the underlying felony upon which that prosecution was based was 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).
Malice murder and kidnapping not same offense for double jeopardy purposes even though involving same transaction and considerably overlapping 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).
Dual federal and state prosecutions not barred.
- Federal prosecution for carjacking was not a former jeopardy bar to state prosecutions for carjacking, felony murder, armed robbery, and kidnapping with bodily injury, since the facts necessary to prove the federal charge were different from those necessary to prove the state charges. Torres v. State, 270 Ga. 79, 508 S.E.2d 171 (1998).
Circumstances established the exception to O.C.G.A. § 16-1-8(c) bar to state prosecution after a federal conviction based on the same conduct, because defendant's conviction for conspiracy in federal court required proof of defendant's knowing and voluntary participation in an unlawful agreement to possess and distribute methamphetamine, whereas the Georgia crimes required proof of the possession alleged in the indictments, and, in the case of trafficking methamphetamine, proof of possession of 28 grams or more. Moser v. State, 246 Ga. App. 268, 538 S.E.2d 904 (2000).
State prosecution of a drug offense arising out of the same conduct prosecuted in federal court and pled upon by defendant was not barred under O.C.G.A. § 16-1-8(c), as the federal case was dismissed after the state action was filed, and thus a final judgment was never entered. Thorpe v. State, 251 Ga. App. 334, 553 S.E.2d 171 (2001).
Trial court did not err in denying defendant's motion to dismiss the state charge of possession of a firearm during the commission of a felony based on a double jeopardy argument made pursuant to O.C.G.A. § 16-1-8(c), as the state's prosecution was not barred due to defendant's acquittal in federal district court on a related charge, and since the state's later prosecution of defendant required proof of an element not required in the federal prosecution. Scott v. State, 250 Ga. App. 870, 553 S.E.2d 276 (2001).
Trial court did not err in denying the defendant's motion in autrefois convict/plea in bar because the federal and state prosecutions required proof of a fact that the other did not as the defendant's federal conviction for conspiracy to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance required the agreement of two or more persons to commit a criminal act, and the state trafficking charge did not require proof of an agreement between two or more people to commit a criminal act, and required proof of the possession of the cocaine. Stembridge v. State, 331 Ga. App. 199, 770 S.E.2d 285 (2015).
Prosecution on state and federal charges of murder and kidnapping.
- 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 Georgia's statutes barring multiple prosecutions, O.C.G.A. §§ 16-1-7 and16-1-8, nor 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).
Motion to dismiss.
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).
Reindictment and reprosecution under O.C.G.A. § 16-9-1 barred by prior prosecution under O.C.G.A. § 16-13-43. - If O.C.G.A. § 16-13-43 was the exclusive statute to be applied in a given case, O.C.G.A. § 16-9-1 still generally proscribes part of the same conduct, and any attempt to reindict and reprosecute would be barred by a plea of former jeopardy under O.C.G.A. § 16-1-8. State v. O'Neal, 156 Ga. App. 384, 274 S.E.2d 575 (1980).
Reindictment proper when judgment of conviction vacated.
- Trial court did not adjudge the defendant not guilty, but vacated a judgment of conviction because the offense of enticing a child for indecent purposes was not a lesser-included offense of child molestation. Thus, O.C.G.A. § 16-1-8(d) did not prevent the state from reindicting the defendant for child molestation. Phillips v. State, 298 Ga. App. 520, 680 S.E.2d 424 (2009).
When victim dies after aggravated assault conviction, subsequent prosecution for murder not barred.
- When criminal offense of murder was not yet complete because the victim had not died at the time of the aggravated assault conviction, the subsequent prosecution for murder was not barred by express terms of former Code 1933, § 26-506(b) or § 26-507(b) (see now O.C.G.A. § 16-1-7(b) or O.C.G.A. § 16-1-8(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).
Conviction of lesser crime does not bar retrial upon 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 defendant obtains reversal of the major crime for lack of jurisdiction remaining conviction of the lesser crime does not bar retrial on major crime. In the event that the defendant is then convicted on retrial for major crime, invalidation of defendant's conviction of the 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).
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).
Subsequent prosecution of defendant for robbery after defendant pled guilty in traffic court to fleeing to elude did not violate O.C.G.A. § 16-1-8 since the offenses involved wholly different elements and facts and defendant could not have been prosecuted in traffic court for the felony charge of robbery. Blackwell v. State, 230 Ga. App. 611, 496 S.E.2d 922 (1998).
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).
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).
Independent prosecutions of armed robbery and motor vehicle theft.
- Offense of armed robbery and that of theft of a motor vehicle do not necessarily arise from the 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).
Assault and criminal damage to property not barred by original traffic offenses.
- Since the defendant could not have been convicted for aggravated assault and criminal damage to property under prior traffic offenses and each prosecution required proof of facts not required on the other, the prosecution for assault and criminal damage was not barred. Cates v. State, 206 Ga. App. 694, 426 S.E.2d 576 (1992).
When 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).
When 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, defendant was not subjected to any former "prosecution" within the meaning of O.C.G.A. §§ 16-1-7(b) 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).
Separate proceedings on traffic-related offenses and controlled substances offenses.
- When 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).
Subsequent prosecution for driving under the influence not barred.
- When the defendant was charged with two occurrences on different dates of driving while intoxicated, the fact that the second charge was pending when the defendant pled to the first does not prohibit prosecution for the second charge. Grogan v. State, 179 Ga. App. 300, 346 S.E.2d 378 (1986).
Convictions for various traffic offenses did not bar subsequent prosecution for theft by receiving stolen property, i.e., a motorcycle, where the only connection between the theft charge and the traffic offenses was the fact that defendant committed the traffic offenses with the stolen vehicle. Grant v. State, 180 Ga. App. 742, 350 S.E.2d 582 (1986), cert. denied, 481 U.S. 1006, 107 S. Ct. 1630, 95 L. Ed. 2d 203 (1987).
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).
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).
Theft by deception prosecution barred.
- Prosecution of theft by deception was barred as either was based on the same conduct which formed the basis of defendant's earlier prosecution for theft by deception or based on conduct stemming from the same transaction which formed the basis of defendant's earlier prosecution. Gentry v. State, 206 Ga. App. 490, 426 S.E.2d 52 (1992).
Forgery prosecution not barred if forgery had not been committed.
- After defendant pled guilty to theft by taking for writing fraudulent checks, defendant's subsequent prosecution for forgery for uttering and delivering the checks was not barred under O.C.G.A. § 16-1-8(b)(1), because, when defendant pled guilty to theft by taking, the forgery offenses had not been completed, so defendant could not have been prosecuted for the latter offenses when defendant pled guilty to the former. Furthermore, because the two prosecutions each required proof of facts not required by the other, as proof of forgery did not require proof that defendant unlawfully took property and proof of theft by taking did not require proof that defendant uttered and delivered checks, the subsequent prosecution was not barred. Cade v. State, 262 Ga. App. 206, 585 S.E.2d 172 (2003).
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).
Prosecutor had no prior knowledge, thus prosecution allowed.
- When the facts relating to the 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).
Subsequent prosecution denied since prosecutor had earlier knowledge.
- At the time defendant pled guilty to reckless conduct, the prosecutor was aware of facts in the arrest report that 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).
Term "same conduct" means activities relating to the "same transaction," or earlier crime, not "the same type of conduct," thus, drug sales on March 12 and 25 were not the "same conduct" as a sale made in April, a separate and distinct transaction, and prosecution under two indictments was not barred. State v. Gillespie, 206 Ga. App. 427, 425 S.E.2d 418 (1992).
Conviction for violating county ordinance did not bar conviction under code.
- Defendant's pit bull mauled a child. The defendant's conviction in recorder's court of violating a county ordinance by failing to exercise ordinary care in controlling the defendant's pet for the protection of others was sufficiently separate from a misdemeanor reckless conduct charge under O.C.G.A. § 16-5-60(b), which required proof of a gross deviation from the standard of care, that a successive prosecution for violating § 16-5-60(b) did not violate the double jeopardy ban. State v. Stepp, 295 Ga. App. 813, 673 S.E.2d 257 (2009).
Felony prosecutions not barred by pleas of guilty to misdemeanor offenses.
- 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).
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).
Reversal of Conviction for Insufficient Evidence
Second prosecution barred.
- Unless evidence at first trial is sufficient to authorize verdict of guilty, second prosecution is barred. Bethay v. State, 235 Ga. 371, 219 S.E.2d 743 (1975); Holcomb v. Peachtree, 187 Ga. App. 258, 370 S.E.2d 23 (1988).
Trial court erroneously admitted an officer's testimony regarding a statement made by one of the victims who died of natural causes prior to trial as the admission violated the defendant's right to confrontation; moreover, because there was no other evidence to support the armed robbery count, the defendant could not be retried for it. Gifford v. State, 287 Ga. App. 725, 652 S.E.2d 610 (2007).
Verdict not authorized by evidence is same as directed verdict of acquittal.
- Under O.C.G.A. § 16-1-8, result of finding that evidence does not authorize verdict is same as directed verdict of acquittal (no retrial in either event); thus, in reviewing overruling of motion for directed verdict of acquittal, Supreme Court will utilize standard used in reviewing overruling of motion for new trial on ground that verdict is contrary to evidence; i.e., the "any evidence" test. Bethay v. State, 235 Ga. 371, 219 S.E.2d 743 (1975).
Reversal of conviction due to insufficient evidence bars subsequent prosecution for same crime.
- When one is prosecuted and convicted, a subsequent prosecution is barred if subsequent proceedings (e.g., motion for new trial on general grounds, or appeal) resulted in finding that evidence did not authorize the verdict. Bethay v. State, 235 Ga. 371, 219 S.E.2d 743 (1975).
Reversal barred retrial for lesser-included offense.
- Reversal of the defendants' convictions for felony murder based upon armed robbery due to insufficient evidence not only raised a procedural double jeopardy bar for that particular crime, it also raised a procedural double jeopardy bar for the lesser-included offense of criminal attempt to commit armed robbery. Prater v. State, 273 Ga. 477, 541 S.E.2d 351 (2001).
Reversal of conviction due to insufficient evidence.
- After the court of appeals reversed the defendant's first conviction because the evidence did not authorize the verdict, prosecution for a different crime which should have been included in the first trial was barred by former Code 1933, § 26-507(b). Marchman v. State, 234 Ga. 40, 215 S.E.2d 467 (1975).
Retrial
O.C.G.A. § 16-1-8(d)(2) specifically permits retrial where a conviction is set aside on appeal for reasons other than the sufficiency of the evidence. Samuel v. State, 190 Ga. App. 539, 379 S.E.2d 571, cert. denied, 190 Ga. App. 899, 379 S.E.2d 571 (1989).
No double jeopardy.
- Double jeopardy claim properly denied where the grant of defendant's motion for a new trial set aside defendant's conviction without adjudging the defendant not guilty or finding that the evidence did not authorize the verdict. Garrard v. State, 242 Ga. App. 189, 528 S.E.2d 273 (2000).
Trial court did not err in denying defendant's plea in bar of former jeopardy where there was no intent on the part of the state to create the circumstances leading to a mistrial, because the case was properly terminated under O.C.G.A. § 16-1-8(e)(2)(B); a finding that the requirements of § 16-1-8(e)(1) had not been met did not automatically lead to the conclusion that the former prosecution terminated improperly. Seymour v. State, 262 Ga. App. 823, 586 S.E.2d 713 (2003).
Evidence at defendant's first trial was sufficient to sustain convictions for aggravated sodomy pursuant to O.C.G.A. § 16-6-2(a), sexual battery pursuant to O.C.G.A. § 16-6-22.1, and aggravated sexual battery pursuant to O.C.G.A. § 16-6-22.2(b); thus, double jeopardy did not prohibit a retrial granted on the ground that defendant received ineffective assistance of counsel. Weldon v. State, 270 Ga. App. 574, 607 S.E.2d 175 (2004).
To the extent that defendant argued that a retrial on charges of burglary and false imprisonment was barred by the extended protection of procedural double jeopardy embodied in O.C.G.A. § 16-1-8, when the state redacted the charge of burglary in the first trial before the jury was impaneled and sworn, the first trial on the charge of false imprisonment ended in a mistrial, and the state tried and defendant was convicted in a second trial on both the burglary and false imprisonment charges, defendant's failure to file a written plea in bar prior to the second trial waived any right to subsequently raise a challenge on procedural double jeopardy grounds. Alexander v. State, 279 Ga. 683, 620 S.E.2d 792 (2005).
Trial court properly denied the defendant's plea in bar based on double jeopardy under U.S. Const., amend. 5 and Ga. Const. 1983, Art. I, Sec. I, Para. XVIII, seeking to prevent a retrial of criminal charges against defendant after the motion for a mistrial under O.C.G.A. § 16-1-8(e)(1) was granted in the first trial upon the jury's advisement to the trial court judge that they were hopelessly deadlocked due to the refusal by two jurors to consider the direct evidence; the mistrial was properly declared and there was no improper conduct shown by the trial court or the state but rather, the defendant's counsel admitted that defendant hoped that another jury would be more sympathetic to the defendant upon a retrial, as the first jury was deadlocked 10-2 in favor of conviction. Jackson v. State, 282 Ga. App. 476, 638 S.E.2d 865 (2006).
Retrial after not guilty finding returned by an unsworn jury was not barred by the double jeopardy principles under both the U.S. and Georgia Constitutions as the jury lacked any authority to pass upon any of the issues at trial, and hence, could not make any determinations whatsoever as to the defendant's guilt or innocence. Spencer v. State, 281 Ga. 533, 640 S.E.2d 267, cert. denied, 551 U.S. 1103, 127 S. Ct. 2914, 168 L. Ed. 2d 243 (2007).
Because a plea of double jeopardy was found to be frivolous, the defendant's filing of a notice of appeal from the denial of an earlier double jeopardy plea did not divest the trial court of jurisdiction over the case, and hence the filing of a notice of appeal merely deprived the trial court of the court's power to execute the sentence; thus, because the sentence was not imposed against the defendant until after the remittitur was filed below, that sentence was upheld. DeSouza v. State, 285 Ga. App. 201, 645 S.E.2d 684, cert. denied, No. S07C1347, 2007 Ga. LEXIS 539 (Ga. 2007).
Retrial of a charge of possession of a firearm by a convicted felon would not itself violate double jeopardy or any other constitutional right since the right not to be prosecuted on a count which was quashed for the second time was purely statutory pursuant to O.C.G.A. § 17-7-53.1. Langlands v. State, 282 Ga. 103, 646 S.E.2d 253 (2007).
Trial court erred in granting the defendant's plea in bar because double jeopardy did not bar a second trial on the same charges since the retrial was granted due to an erroneous evidentiary ruling; the order granting a new trial did not find the evidence was legally insufficient to sustain the verdict, but instead, the second trial judge granted the new trial based on the original trial court's error in admitting an exhibit to prove that the defendant had a prior felony conviction after the defendant had offered to stipulate that the defendant was a convicted felon. State v. Caffee, 291 Ga. 31, 728 S.E.2d 171 (2012).
Since the reversal of a defendant's convictions amounted to neither an adjudication of not guilty nor a finding that the evidence did not authorize the verdict, the defendant's re-indictment and retrial were not barred. Dryden v. State, 316 Ga. App. 70, 728 S.E.2d 245 (2012).
Trial court did not err by declaring a mistrial after the first trial and retrying the defendant because the defendant did not show that the defendant raised the doctrine of procedural double jeopardy prior to the second trial. Riddick v. State, 320 Ga. App. 500, 740 S.E.2d 244 (2013).
Since the record established that the order authorizing the withdrawal of the defendant's guilty pleas was vacated on the defendant's own motion, thereby reinstating the defendant's original guilty pleas and convictions, there was not a second prosecution and the trial court did not err by denying the defendant's motion for plea in bar. Pierce v. State, 294 Ga. 842, 755 S.E.2d 732 (2014).
Allen charge.
- After a jury indicated that it was deadlocked and then requested a second Allen charge, the trial court did not abuse its discretion in declaring a mistrial; consequently, defendant's plea in bar for double jeopardy lacked merit. DeSouza v. State, 270 Ga. App. 849, 608 S.E.2d 313 (2004).
Retrial and sentencing after conviction set aside.
- State generally may retry defendant who succeeds in having first conviction set aside and, as a corollary of that power, to impose whatever sentence may be authorized, whether or not it is greater than sentence imposed after first conviction. McClure v. Hopper, 234 Ga. 45, 214 S.E.2d 503 (1975).
Although defendant's conviction was reversed because the state did not meet its burden of production as to defendant's motion challenging the sufficiency of a search warrant affidavit, the defendant could be retried since defendant's conviction was set aside on procedural grounds. Watts v. State, 261 Ga. App. 230, 582 S.E.2d 186 (2003).
In the context of a granted motion for mistrial, governmental misconduct will support a plea in bar based on double jeopardy if the prosecutor or trial judge intended to goad the defendant into moving for a mistrial. In the context of a reversal or grant of a motion for new trial, on the other hand, double jeopardy may bar a retrial where the prosecutor intended to prevent an acquittal, or the trial judge accused of misconduct, believed at the time was likely to occur in the absence of the judge's misconduct. Paul v. State, 266 Ga. App. 126, 596 S.E.2d 670 (2004).
Imposition of greater sentence upon retrial.
- Imposition of higher sentence on defendant being retried for crime does not violate due process or constitute double jeopardy so long as jury is not informed of prior sentence and second sentence is not otherwise shown to be a product of vindictiveness. McClure v. Hopper, 234 Ga. 45, 214 S.E.2d 503 (1975).
When the state seeks to prosecute a defendant for two offenses, one of which is included in the other, and the defendant receives a mistrial on the greater offense, the remaining conviction of the lesser offense does not bar retrial of the greater offense. Rower v. State, 267 Ga. 46, 472 S.E.2d 297 (1996).
Effect of reversal for error at trial.
- Because the reversal of defendant's conviction was based on trial error, double jeopardy did not prevent retrial. Daniels v. State, 165 Ga. App. 397, 299 S.E.2d 746 (1983).
Double jeopardy protection did not bar a second trial on the same charges because the defendant's motion for new trial was granted due to an erroneous evidentiary ruling. State v. Caffee, 291 Ga. 31, 728 S.E.2d 171 (2012).
Retrial was not barred when reversal based on inadmissible evidence.
- When the conviction was reversed on the basis that the testimony of certain witnesses was inadmissible hearsay, and since it was clear from the court's opinion that the majority neither intended to nor actually did pass upon the sufficiency of the evidence, the defendant's plea of double jeopardy was properly denied; the question remained whether the evidence did indeed support the verdict, and the trial transcript revealed circumstantial evidence from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Glisson v. State, 192 Ga. App. 409, 385 S.E.2d 4, cert. denied, 192 Ga. App. 901, 385 S.E.2d 4 (1989).
When the actions of a prosecutor cause a mistrial, a second trial does not constitute double jeopardy in violation of the defendant's constitutional rights. Japhet v. State, 176 Ga. App. 189, 335 S.E.2d 425 (1985).
Trial court did not err in denying the defendant's plea of former jeopardy because the court's finding that the prosecution's question on cross-examination was an unintentional reference to the defendant's right to remain silent was not clearly erroneous; the record contained evidence to support the trial court's finding that the prosecutor's question was not intended to goad the defense into seeking a mistrial. Demory v. State, 313 Ga. App. 265, 721 S.E.2d 93 (2011).
Prosecutor's actions resulting in mistrial and creating double jeopardy.
- Because a prosecutor's conduct violated one of the most basic rules of prosecutorial procedure, specifically, producing documents in discovery showing that the defendant refused to speak with police and requested a lawyer after being advised of Miranda, and hence intentionally goading the defendant into moving for a mistrial, the trial court erred in denying the defendant's motion for a plea in bar on double jeopardy grounds. Anderson v. State, 285 Ga. App. 166, 645 S.E.2d 647 (2007).
Nature of prosecutor's misconduct.
- When it was not shown that the prosecutor's misconduct was for the purpose of aborting the trial and securing an opportunity to retry the case, the trial court properly concluded that double jeopardy did not bar defendant's retrial. Dinning v. State, 267 Ga. 879, 485 S.E.2d 464 (1997).
Governmental misconduct.
- After the trial court previously granted the defendant's motion for a mistrial and, although it was not specified why the motion was granted, it was assumed that it was granted due to the state's intentional misconduct during that first trial, because there was no indication in the trial court record of any specific intent by the state to subvert defendant's double jeopardy rights by provoking the defendant into seeking the mistrial, the trial court erred in granting the defendant's motion for discharge and acquittal of a retrial on double jeopardy grounds. State v. Brown, 278 Ga. App. 827, 630 S.E.2d 62 (2006).
Retrial after mistrial due to jury's failure to reach verdict did not constitute double jeopardy under former Code 1933, § 26-507(e)(2)(C) (see now O.C.G.A. § 16-1-8(e)(2)(C)). Phillips v. State, 238 Ga. 632, 235 S.E.2d 12 (1977).
Retrial for lack of sufficient venue evidence.
- Absent sufficient proof establishing venue, the defendant's aggravated sexual battery and aggravated sodomy convictions were reversed; but, given that sufficient evidence otherwise existed to support the former charge, retrial on the same would not violate the defendant's double jeopardy rights. Melton v. State, 282 Ga. App. 685, 639 S.E.2d 411 (2006).
Because the state failed to prove the element of venue beyond a reasonable doubt, and there was no indication in the record that the juvenile waived venue or that the court took judicial notice of venue as an element of the offenses charged, the juvenile's adjudications of delinquency had to be reversed. However, although the delinquency adjudications had to be reversed, the state was permitted to retry the juvenile without violating the double jeopardy clause, because there was otherwise sufficient evidence at trial to support the adjudications entered. In the Interest of J.B., 289 Ga. App. 617, 658 S.E.2d 194 (2008).
Purposes of discharge of jury for failure to agree.
- Possibility of retrial after discharge of jury for failure to agree serves to discourage putting excessive pressure on juries to agree, and reduces risk that verdict will not be a genuine jury decision freely arrived at. In addition, it serves to prevent a single juror from unreasonably holding out for acquittal, causing a mistrial, and thereby invoking bar of double jeopardy singlehandedly. Orvis v. State, 237 Ga. 6, 226 S.E.2d 570 (1976).
Retrial allowed following mistrial based on juror's disqualification.
- Removal of a juror who had mistakenly misadvised the trial court as to the juror's qualifications upon voir dire, thereby depriving the jury of the statutory minimum number, constituted "manifest necessity" for a mistrial, and retrial following such mistrial was not barred by a plea of double jeopardy. Bishop v. State, 179 Ga. App. 606, 347 S.E.2d 350 (1986).
Retrial not necessarily barred by fact that alternative to mistrial existed.
- Mere existence of some alternative will not compel conclusion that declaration of mistrial by trial judge was sufficiently precipitate to bar retrial. Jones v. State, 232 Ga. 324, 206 S.E.2d 481 (1974).
When a mistrial was granted at the request of the defendant, retrial was not prohibited since it was not established that the state intended to goad the defendant into moving for a mistrial. Williams v. State, 268 Ga. 488, 491 S.E.2d 377 (1997).
After the trial court duly weighed the respective rights of the defendant and the state before electing sua sponte to declare a mistrial in a trial where no evidence had been presented and the defense's case still remained unknown to the state, and since the court had considered other lesser alternatives, including the granting of a continuance, the trial court did not err in denying the defendant's motion to dismiss or acquit by reason of former jeopardy. Terrell v. State, 236 Ga. App. 163, 511 S.E.2d 555 (1999).
While more options other than a mistrial are available to a trial court faced with a deadlocked jury, the trial court is not required to exercise those options under all circumstances; instead, an appellate court considers the trial court's decision in this regard to be discretionary and it will reverse only if the trial court abuses that discretion. Leonard v. State, 275 Ga. App. 667, 621 S.E.2d 599 (2005).
Retrial is permissible only if a manifest necessity existed for declaration of mistrial lest otherwise the end of public justice be defeated. Jones v. State, 232 Ga. 324, 206 S.E.2d 481 (1974).
"Manifest necessity" for a mistrial shown.
- In a bench trial, the judge's inability to disregard evidence the judge ruled inadmissible constituted a manifest necessity for a mistrial and the defendant's double jeopardy rights would not be violated by a retrial to a jury. Bailey v. State, 219 Ga. App. 258, 465 S.E.2d 284 (1995).
After a news story about the case appeared in a local newspaper the morning after the trial court had decreed a recess to consider a question regarding the admissibility of certain evidence objected to by the defense, it was within the court's discretion to declare a mistrial based on "manifest necessity." Putnam v. State, 245 Ga. App. 95, 537 S.E.2d 384 (2000).
In the defendant's trial for malice murder and felony murder arising out of the shooting death of a drug dealer, the trial court did not abuse the court's discretion in declaring a mistrial over the defendant's objection out of manifest necessity given that a juror had consulted with outside sources and shared legally inaccurate information with the jury. The mistrial did not bar the defendant's retrial on the charges. Blake v. State, 304 Ga. 747, 822 S.E.2d 207 (2018).
"Manifest necessity" for a mistrial not shown.
- Failure to hold a Jackson-Denno hearing over defendant's allegation that a custodial statement had been coerced and introduction of testimony of the defendant related thereto did not create "manifest necessity" for a mistrial. Smith v. State, 263 Ga. 782, 439 S.E.2d 483 (1994).
Cross examination of an accomplice who has negotiated a plea and is testifying against a defendant, in order to bring out bias inherent in the witness's testimony, is proper and constitutionally protected, therefore granting a mistrial over defendant's objection was error and manifest necessity did not exist. Hernandez v. State, 244 Ga. App. 874, 537 S.E.2d 149 (2000).
Retrial was barred where the trial court improperly terminated a trial because defendant was not timely notified of additional charges; the court failed to consider alternative remedies which would have preserved defendant's right to proceed with the trial. Jefferson v. State, 224 Ga. App. 8, 479 S.E.2d 406 (1996).
Because the trial court's grant of a new trial stemmed from trial error, the defendant could not be retried on an offense of per se DUI, given that the defendant was adjudged not guilty of that charge based upon the insufficiency of the evidence; thus, the trial court erred in denying the plea in bar. Shah v. State, 288 Ga. App. 788, 655 S.E.2d 347 (2007).
Denial of the plea in bar, which asserted double jeopardy grounds after the first trial of the defendant ended with the trial judge's sua sponte declaration of a mistrial due to a violation of the sequestration rule, was erroneous as there was no manifest necessity for a mistrial because there was no evidence that the rule was violated; even if two defense witnesses could have heard testimony from the witness stand, there was no evidence of prejudice from any presumed overhearing of testimony as there was no evidence showing that either of the witnesses would have changed their testimony to match that of other witnesses; and the mere absence of an objection to the mistrial, without more, did not constitute consent to the mistrial. Brown v. State, 354 Ga. App. 493, 841 S.E.2d 125 (2020).
If the possibility of prosecutorial abuse exists, examination of the alternatives to mistrial is more stringent. Jones v. State, 232 Ga. 324, 206 S.E.2d 481 (1974).
Defense could not prevent retrial by withholding consent to mistrial, since even if the trial court had erred in terminating the homicide trial, and even if the defense could not be blamed for misunderstanding the trial court's ruling on whether the court would permit argument and admit evidence concerning the prosecutor's political ambitions, nevertheless it was the defense who injected the matter that resulted in the mistrial. McGarvey v. State, 186 Ga. App. 562, 368 S.E.2d 127, cert. denied, 186 Ga. App. 918, 368 S.E.2d 127 (1988).
When a defendant faced two separate charges for driving under the influence, occurring on two different dates, defendant's acquittal on the first charge of driving under the influence did not bar a subsequent prosecution for driving under the influence on the later date, where neither of the accusations stated that the date of the alleged offenses was a material averment and the state could prove their commission at any time within the two-year statute of limitations. Sandner v. State, 193 Ga. App. 62, 387 S.E.2d 27 (1989).
Defendant's abuse of rape shield statute justified retrial.
- Defendant's introduction of evidence that was prohibited by the rape shield statute gave the court grounds to find manifest necessity for a mistrial; therefore, state and federal double jeopardy provisions did not bar reprosecution. Banks v. State, 230 Ga. App. 258, 495 S.E.2d 877 (1998).
Jurisdictional Issues
Acquittal before court having no jurisdiction is void, and therefore is not a bar to subsequent indictment and trial in a court which has jurisdiction of the offense. 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).
Failure to prove venue in first trial is not prohibition to new trial.
- Retrial of defendants was not barred by O.C.G.A. § 16-1-8 because a subsequent prosecution was not barred if the former prosecution was before a court which lacked jurisdiction over the accused or the crime, and the trial court in the first trial lacked jurisdiction over the crime because the state failed to prove venue, and therefore O.C.G.A. § 16-1-8(d)(1) applied. Grier v. State, 275 Ga. 430, 569 S.E.2d 837 (2002).
After a defendant was granted a directed verdict on the basis that the state failed to prove venue in a criminal prosecution for driving under the influence per se, retrial was not barred under U.S. Const., amend. 5 and O.C.G.A. § 16-1-8 because, while venue had to be laid in the county in which the crime was allegedly committed under Ga. Const. 1983, Art. VI, Sec. II, Para. VI and O.C.G.A. § 17-2-2 and venue was a jurisdictional fact, failure to prove venue was a procedural error that implied nothing as to defendant's guilt or innocence. Hudson v. State, 296 Ga. App. 758, 675 S.E.2d 603, cert. denied, No. S09C1163, 2009 Ga. LEXIS 413 (Ga. 2009), cert. denied, 558 U.S. 1076, 130 S. Ct. 799, 175 L. Ed. 2d 559 (2009).
No former jeopardy bar from prior accusation.
- As defendant was initially charged by accusation with terroristic threats and aggravated stalking, which were not properly prosecuted without an indictment or a written waiver thereof pursuant to O.C.G.A. §§ 17-7-70(a) and17-7-70.1, the dismissal of the accusation after the jury was sworn and the indictment of the same charges was proper and there was no former jeopardy bar under O.C.G.A. § 16-1-8(d)(1), as the former prosecution under the indictment was void and of no effect. Armstrong v. State, 281 Ga. App. 297, 635 S.E.2d 880 (2006).
Effect of proceedings in municipal court which lacks jurisdiction.
- Fact that charges were initially brought against the criminal defendant in municipal court under former Code 1933, § 79A-9917 (see now O.C.G.A. § 16-13-2) did not bar subsequent proceedings against defendant in state court on double jeopardy grounds, where municipal court lacks jurisdiction of such case. State v. Millwood, 242 Ga. 244, 248 S.E.2d 643 (1978).
Since the recorder's court lacked jurisdiction to try a defendant for driving without insurance, a violation of state law, neither O.C.G.A. § 16-1-7(b) nor § 16-1-8(b) 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).
Proceeding in recorder's court was null and void because the court lacked jurisdiction to try the defendant for a state law violation; thus, the defendant's retrial did not constitute 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).
Since the municipal court lacked jurisdiction to try defendant pursuant to a Uniform Traffic Citation charging defendant 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).
Jurisdictional effect of election to try misdemeanor included within felony.
- Even though evidence in case indicates a felony was committed, prosecuting authorities may very well elect to try defendant in state court for misdemeanor included within that felony, and fact that they have so proceeded will not deprive state court of jurisdiction. Perkins v. State, 143 Ga. App. 124, 237 S.E.2d 658 (1977).
Kidnapping with bodily injury in one county and murder in another.
- When the accused kidnapped the victim and inflicted bodily injury upon the victim in one county, and then abducted the victim to a second county and killed the victim there, the two offenses are not within a single court's jurisdiction and cannot be tried together; therefore, there is no procedural bar to the accused's 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).
Jurisdiction not barred where defects in charge amendable.
- Probate court did not lack jurisdiction over defendant even though a proper accusation was not filed since the defects cited by the defendant in demurrers were amendable. Dean v. State, 214 Ga. App. 768, 449 S.E.2d 158 (1994).
Concurrent jurisdiction required.
- Because the state could not indict defendant for unlawfully using or causing another to use a telephone to arrange the commission of the victim's murder, no concurrent jurisdiction existed; therefore, O.C.G.A. § 16-1-8(c) did not bar the state from prosecuting defendant for malice murder, felony murder, aggravated assault, and burglary. Sullivan v. State, 279 Ga. 893, 622 S.E.2d 823 (2005).
Application Generally
Application of subsection (a).
- O.C.G.A. § 16-1-8(a) governs when an accused is being prosecuted for a crime, the first trial of which was terminated for any reason listed in O.C.G.A. § 16-1-8(e), since it is a situation in which the accused was formerly prosecuted for the same crime based upon the same material facts. If a case fits within the parameters of subsection (a), that becomes the exclusive means for determining whether double jeopardy bars a retrial. State v. LeMay, 186 Ga. App. 146, 367 S.E.2d 61 (1988).
When a defendant consented to the entry of nolle prosequi after the jury had been impaneled and sworn, and the defendant was thereafter charged with the same offense, the original prosecution was neither an acquittal nor an improperly terminated prosecution for the purposes of O.C.G.A. § 16-1-8. Burks v. State, 194 Ga. App. 809, 392 S.E.2d 300 (1990).
In a criminal matter wherein the state brought charges against defendant, a bench trial was commenced, witnesses were sworn in and testified, and the state thereafter terminated that case when it nolle prossed the charges over defendant's objection, jeopardy attached under Ga. Const. 1983, Art. I, Sec. 1, Para. XVIII, and under O.C.G.A. § 16-1-8(a)(2), the state could not thereafter retry defendant on the same charges; although the state's reason for nolle prossing the first set of charges was due to the state's inability to introduce DNA evidence as to defendant's identity, as the state failed to include that information in the indictment in order to avoid a limitations issue, the reason was inconsequential because jeopardy had attached. State v. Aycock, 283 Ga. App. 876, 643 S.E.2d 249 (2007).
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).
Application of subsection (b).
- Prosecution for forgery was not barred by O.C.G.A. § 16-1-8(b)(1) because defendant could not have been convicted of forgery in the state court due to the court's lack of jurisdiction and because there was no evidence that the district attorney handling the former prosecution case knew of all the crimes. State v. Hulsey, 216 Ga. App. 670, 455 S.E.2d 398 (1995).
Both multiple convictions and successive prosecutions barred.
- If multiple convictions arising out of single prosecution are barred, successive prosecution is likewise barred. Brock v. State, 146 Ga. App. 78, 245 S.E.2d 442 (1978).
Multiple accusations and indictments not barred.
- 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).
No reprosecution for armed robbery.
- Reversal of defendant's convictions for felony murder based on the felony of armed robbery due to insufficient evidence raises a procedural double jeopardy bar to any reprosecution for armed robbery. Prater v. State, 273 Ga. 477, 541 S.E.2d 351 (2001).
Carjacking and armed robbery.
- Defendant's prosecution for a car hijacking was not barred by O.C.G.A. § 16-1-8(b)(1) 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).
Effect of erroneously labeling dismissal for failure to prosecute as acquittal.
- Trial judge cannot terminate state's right to prosecute by erroneously labeling ruling an acquittal. Accordingly, the state is not barred from appealing such void acquittals, since the issue has not been joined in criminal cases and the defendant has not been placed in jeopardy on those charges. State v. Cooperman, 147 Ga. App. 556, 249 S.E.2d 358 (1978).
Effect of improper revocation of bond.
- Incarceration of defendant resulting from the improper revocation of defendant's bond was not a bar to prosecution for vehicular homicide and related offenses. Shaw v. State, 225 Ga. App. 193, 483 S.E.2d 646 (1997).
Continuation of a trial for two months before the same jury, absent exceptional circumstances or consent of the parties, was improper; however, the continuance did not constitute a "termination" within the meaning of O.C.G.A. § 16-1-8 and later proceedings were not barred by double jeopardy; overruling Paquin v. Town of Tyrone, 261 Ga. 418, 405 S.E.2d 497 (1991). Morris v. State, 264 Ga. 823, 452 S.E.2d 100 (1995).
Effect on subsequent prosecution of nolle prosequi before jury impaneled.
- When in superior court, before a jury is impaneled and sworn, the state enters a nolle prosequi of the indictment, and one of the charges is transferred to the county solicitor's office where it subsequently is included in an accusation before the state court, this does not result in an improper termination or constitute the basis for prosecutorial misconduct, and the prosecution is not barred because of double jeopardy. Newman v. State, 166 Ga. App. 609, 305 S.E.2d 123 (1983).
Motion to dismiss waives right to object to termination of trial and no former jeopardy arises. Daughtrey v. State, 138 Ga. App. 504, 226 S.E.2d 773 (1976).
Defendant was named as unindicted coconspirator in entirely different proceeding which in no way operated to place defendant in double jeopardy. Caldwell v. State, 171 Ga. App. 680, 320 S.E.2d 888 (1984).
Record must affirmatively demonstrate that issue in second trial was previously determined.
- Unless record of prior proceeding affirmatively demonstrates that issue involved in second trial was definitely determined in former trial, possibility that it may have been does not prevent relitigation of that issue. State v. Tate, 136 Ga. App. 181, 220 S.E.2d 741 (1975).
Effect of trial court's findings of juror impartiality.
- Although question of juror impartiality is a mixed question of law and fact, trial court's findings of impartiality will be set aside only where manifest prejudice to defendant has been shown. Jones v. State, 247 Ga. 268, 275 S.E.2d 67, cert. denied, 454 U.S. 817, 102 S. Ct. 94, 70 L. Ed. 2d 86 (1981).
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).
Effect of prior hearing under Uniform Code of Military Justice.
- Recommended dismissal, arising from Article 32 hearing under Uniform Code of Military Justice (10 U.S.C. § 832), is not acquittal or an equivalent resolution of factual issues in defendant's favor. Coalter v. State, 183 Ga. App. 335, 358 S.E.2d 894 (1987).
Federal firearm conviction did not bar prosecution for felony murder.
- Fact that the defendant had been convicted in federal court of possession of a firearm under 18 U.S.C. § 922 did not bar a felony murder prosecution in state court on double jeopardy grounds as the state had to prove facts in the felony murder case that were not required to be proved in the federal case. Moreover, the federal offense, which required that a firearm be possessed in and affecting interstate commerce, was not within the concurrent jurisdiction of Georgia and under O.C.G.A. § 16-1-8(c) did not bar a subsequent prosecution for felony murder predicated on the underlying firearm possession charge. Marshall v. State, 286 Ga. 446, 689 S.E.2d 283 (2010).
Trial in Georgia appropriate despite trial in another state.
- As the defendant's theft by taking an automobile occurred in both Georgia and Kentucky, the fact that the defendant was prosecuted in Kentucky did not bar Georgia from also prosecuting the defendant under the dual sovereignty doctrine of the double jeopardy clause; further, O.C.G.A. § 16-1-8(c) was inapplicable because there was not a federal prosecution for the same crime. Jackson v. State, 284 Ga. 826, 672 S.E.2d 640 (2009).
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).
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).
Indictment returned while jeopardy ongoing.
- Second indictment, which was apparently filed to address the eventuality that the defendants' motion to withdraw a guilty plea would be granted, was returned while the defendant's jeopardy was ongoing, and, as such, the indictment did not violate U.S. Const., amend. 5; Ga. Const. 1983, Art. I, Sec. I, Para. XVIII; or O.C.G.A. § 16-1-8. Phillips v. State, 298 Ga. App. 520, 680 S.E.2d 424 (2009).
Second indictment did not violate double jeopardy under O.C.G.A. § 16-1-8(a) as entry of nolle prosequi as to earlier counts did not give rise to a viable double jeopardy challenge to reindictment on the same offenses. Phillips v. State, 298 Ga. App. 520, 680 S.E.2d 424 (2009).
Independent offenses.
- Defendant's plea of guilty to receipt of the victim's automobile did not bar prosecution for burglary of the victim's home prior to taking the vehicle. Maxey v. State, 239 Ga. App. 638, 521 S.E.2d 673 (1999).
Defendant not placed in jeopardy.
- Trial court erred by granting defendant's plea in bar and by granting defendant's request for acquittal and discharge of aggravated battery and aggravated assault counts based on procedural double jeopardy protections as defendant was never placed in jeopardy as to those charges, which were brought in a new indictment against defendant, and defendant's speedy trial request did not apply to the new indictment since the case had been transferred to the superior court. State v. Jones, 290 Ga. App. 879, 661 S.E.2d 573 (2008).
State permitted to prove case against defendant.
- Because the defendant's brother was prosecuted in federal court for possession of a cocaine mixture in an apartment, the state was permitted to prove the state's case against the defendant by proof of joint constructive possession; the state did not prosecute the brother for the brother's joint constructive possession of the cocaine mixture in the apartment, but the United States did prosecute the brother in federal court. Holiman v. State, 313 Ga. App. 76, 720 S.E.2d 363 (2011).
Firearm conviction not precluded by collateral estoppel.
- Defendant's conviction of possession of a firearm by a convicted felon was not precluded by collateral estoppel where defendant was acquitted of two other charges (aggravated assault and possession of a firearm during commission of a crime against a person) arising out of the same incident; the jury could have concluded that defendant had the gun but did not assault or attempt to rob the victim with it. Clark v. State, 194 Ga. App. 280, 390 S.E.2d 425 (1990).
Disorderly conduct and DUI.
- State was not barred from prosecuting defendant for the charges of violation of probationary license and DUI even though defendant had already been prosecuted for a disorderly conduct charge which arose out of a disturbance at a restaurant shortly before defendant drove off and was then stopped and charged with DUI. Selvey v. State, 201 Ga. App. 848, 412 S.E.2d 611 (1991).
Double jeopardy issues with vehicular offenses.
- 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).
Premature termination of trial.
- Termination of defendant's trial after the first witness was sworn, but before findings were rendered by the trier of facts, was improper, where there was nothing in the record to indicate that defendant consented to the premature termination of trial, nor any evidence that defendant waived the right to object to the termination. Phillips v. State, 197 Ga. App. 491, 399 S.E.2d 234 (1990).
Superior court erred in overruling defendant's plea of former jeopardy to a prosecution for driving under the influence, where a recorder's court judge had improperly terminated defendant's trial on the same charge in referring the case to the superior court. Phillips v. State, 197 Ga. App. 491, 399 S.E.2d 234 (1990).
Defendant was placed in double jeopardy where the probate court terminated the trial after the first witness was sworn and before findings of fact were rendered by the trier of fact and the court, sua sponte, bound over the case to the superior court without consent of the defendant to the bind-over. Dean v. State, 214 Ga. App. 768, 449 S.E.2d 158 (1994).
Defendant waived the right to object to termination of probate court proceedings by requesting the probate court judge to bind the case over to the superior court. Bramlett v. State, 222 Ga. App. 687, 475 S.E.2d 704 (1996).
Predicate offenses for RICO violation.
- 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).
Sale and possession or drug offenses.
- When 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 defendant might have at some earlier time possessed all the marijuana in defendant's home; thus, defendant's argument on substantive double jeopardy was rejected. Kinchen v. State, 265 Ga. App. 474, 594 S.E.2d 686 (2004).
Felony murder prosecution not precluded by double jeopardy claim.
- In a case arising out of a robbery and shooting death, where, in the original trial, a mistrial was entered on the felony murder count, and defendant was found not guilty of aggravated assault with intent to rob, the state's subsequent prosecution of defendant for felony murder based on the separate underlying felony of aggravated assault with a deadly weapon was not barred by collateral estoppel as a violation of defendant's double jeopardy rights because evidence adduced at the first trial revealed that defendant jury could have concluded that defendant assaulted the victim with a deadly weapon but did not do so with the intent to rob. Phillips v. State, 272 Ga. 840, 537 S.E.2d 63 (2000).
State's motion for mistrial based on lack of disclosure did not prohibit retrial.
- Trial court did not abuse its discretion in granting the state's motion for a mistrial and ordering that defendant disclose additional alibi witnesses that defense counsel did not disclose after the state demanded such disclosure, but whom defense counsel mentioned in opening statement to the jury in defendant's death penalty case, as the trial court's decision to grant that sanction was entitled to great deference and the failure to disclose the additional alibi witnesses violated the state's right to a fair trial and the state was not precluded from retrying defendant after it obtained such disclosure. Tubbs v. State, 276 Ga. 751, 583 S.E.2d 853 (2003).
Subsequent prosecution not barred since prosecutor had no earlier knowledge.
- Because the defendant failed to affirmatively show that the prosecutor had any actual knowledge regarding 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).
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).
Sentence vacated and resentencing ordered when the trial court erred by increasing a juvenile defendant's voluntary manslaughter sentence after defendant had already begun serving the sentence, because the original sentence was final at the time it was imposed, and defendant had no reason to believe otherwise; hence, the trial court's increased sentence constituted double jeopardy and could not stand. Williams v. State, 273 Ga. App. 42, 614 S.E.2d 146 (2005).
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.
- 16B Am. Jur. 2d, Constitutional Law, § 643 et seq. 21 Am. Jur. 2d, Criminal Law, §§ 269 et seq., 315 et seq., 323 et seq. 75B Am. Jur. 2d, Trials, § 1407 et seq.
C.J.S.- 22 C.J.S., Criminal Procedure and Rights of the Accused, § 212. 22A C.J.S. Criminal Procedure and Rights of the Accused, § 605 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.
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.
Illness or death of member of juror's family as justification for declaring mistrial and discharging jury in criminal case, 53 A.L.R. 1062.
Award of venire de novo or new trial after verdict of guilty as to one or more counts and acquittal as to another as permitting retrial or conviction on latter count, 80 A.L.R. 1106.
Discharge on habeas corpus after conviction as affecting claim or plea of former jeopardy, 97 A.L.R. 160.
Impersonation or false statement by juror as to his identity as ground for new trial, 127 A.L.R. 717.
Conviction or acquittal in criminal prosecution as bar to action for statutory damages or penalty, 42 A.L.R.2d 634.
Conviction of lesser offense as bar to prosecution for greater on new trial, 61 A.L.R.2d 1141.
Conviction from which appeal is pending as bar to another prosecution for same offense, 61 A.L.R.2d 1224.
Propriety, and effect as double jeopardy, of court's grant of new trial on own motion in criminal case, 85 A.L.R.2d 486.
Prejudicial effect of prosecuting attorney's argument to jury that people of city, county, or community want or expect a conviction, 85 A.L.R.2d 1132.
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.
Former jeopardy: Propriety of trial court's declaration of mistrial or discharge of jury, without accused's consent, on ground of prosecution's disclosure of prejudicial matter to, or making prejudicial remarks in presence of, jury, 77 A.L.R.3d 1143.
Propriety and prejudicial effect of informing jury that accused has taken polygraph test, where results of test would be inadmissible in evidence, 88 A.L.R.3d 227.
Propriety and prejudicial effect of prosecutor's argument to jury indicating his belief or knowledge as to guilt of accused - modern state cases, 88 A.L.R.3d 449.
Acquittal of criminal charges other than contempt as precluding contempt proceedings relating to same transaction, 88 A.L.R.3d 1089.
Acquittal as bar to prosecution of accused for perjury committed at trial, 89 A.L.R.3d 1098.
Propriety and prejudicial effect of prosecutor's argument to jury indicating that he has additional evidence of defendant's guilt which he did not deem necessary to present, 90 A.L.R.3d 646.
Propriety and prejudicial effect of prosecutor's argument giving jury impression that judge believes defendant guilty, 90 A.L.R.3d 822.
Instructions urging dissenting jurors in state criminal case to give due consideration to opinion of majority (Allen charge) - modern cases, 97 A.L.R.3d 96.
Conviction or acquittal in federal court as bar to prosecution in state court for state offense based on same facts - modern view, 18 A.L.R.4th 802.
Effect of juror's false or erroneous answer on voir dire in personal injury or death action as to previous claims or actions for damages by himself or his family, 38 A.L.R.4th 267.
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.