FIRST DIVISION
DOYLE, C. J.,
PHIPPS, P. J., and BOGGS, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
September 9, 2015
In the Court of Appeals of Georgia
A15A1004. THE STATE v. HILL.
BOGGS, Judge.
The State appeals from the trial court’s order granting Thomas Landon Hill’s
plea in bar on the ground of procedural double jeopardy. Because the offenses in
question were not known to the proper prosecuting officer, the trial court erred in
granting Hill’s plea in bar, and we therefore reverse.
On appeal from the grant or denial of a double jeopardy plea in
bar, we review the trial court’s oral and written rulings as a whole to
determine whether the trial court’s findings support its conclusion.
Where the evidence is uncontroverted and witness credibility is not an
issue, our review of the trial court’s application of the law to the
undisputed facts is de novo.
(Citation and punctuation omitted.) State v. Pruiett, 324 Ga. App. 789, 790 (751 SE2d
579) (2013).
The relevant facts are not in dispute. On February 2, 2013, Hill was involved
in an automobile collision with injuries in Savannah. He received uniform traffic
citations for DUI, following too closely, and an expired tag. The Chatham County
Recorder’s Court docket reflects that Hill’s counsel entered an appearance in that
court on the DUI and following too closely charges on or before April 25, 2013.
The senior deputy clerk of the recorder’s court testified that the DUI charges
and the charge of following too closely initially were assigned a case report number
or “CRN” in the recorder’s court. For some unknown reason, however, recorder’s
court personnel failed to assign any CRN to the expired tag charge. As a result, the
expired tag charge became separated from the other charges “at the beginning when
they got entered in the system.” Because of the failure to assign a CRN to the expired
tag charge, it was not “flagged” or identified as a related charge to the other charges.
Instead, it simply was placed on the “regular traffic docket.”
On October 25, 2013, the DUI and following too closely charges were bound
over to the State Court of Chatham County. On December 26, 2013, Hill was charged
by accusation in state court with two counts of driving under the influence of drugs,
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following too closely, and operating a vehicle with an expired tag. But, due to the
clerical error, the expired tag charge also remained pending in recorder’s court. The
deputy clerk testified that cases usually were transferred from recorder’s court by a
district attorney, who would “come into court and make an announcement in court
that the case was either accused or indicted.” She believed that, with respect to the
DUI and following too closely charges, “an announcement was made in court to send
them to State Court.” However, she testified that nothing in the recorder’s court files
indicated that the expired tag charge was accused or indicted by the district attorney’s
office or that the district attorney did so by announcement in open court.
On March 5, 2014, Hill’s counsel entered an appearance in state court, and Hill
entered a plea of “not guilty” and demanded a jury trial. On April 28, 2014, trial in
state court was set for July 14, 2014. Meanwhile, on June 17, 2014, Hill appeared in
recorder’s court, purged himself of contempt, and entered a guilty plea to the expired
tag charge. The recorder’s court deputy clerk testified that no prosecutor or assistant
district attorney handles cases on the traffic docket in recorder’s court, and that the
district attorneys do not receive notice of cases on the traffic docket.
On July 10, 2014, Hill requested a continuance in state court because “[t]he
defense anticipates filing a motion based on new circumstances.” The State had no
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objection, and trial was reset for August 11, 2014. On August 6, 2014, Hill filed a
plea in bar in state court, contending that his guilty plea in recorder’s court caused
procedural double jeopardy to attach to the charges in state court under OCGA § 16-
1-7 (b). The trial court agreed and dismissed the pending charges, holding on the
basis of State v. Smith, 259 Ga. 352, 353 (381 SE2d 37) (1989), that the district
attorney had actual knowledge of the expired tag charge because it was included in
the accusation, and that the State therefore had the obligation to dismiss the charge
in recorder’s court. This appeal followed.
Under OCGA § 16-1-7 (b), if several crimes [1] arising from the same
conduct are [2] known to the proper prosecuting officer at the time of
commencing the prosecution and are [3] within the jurisdiction of a
single court, they must be prosecuted in a single prosecution. A second
prosecution is barred under OCGA § 16-1-8 (b) (1) if it is for crimes
which should have been brought in the first prosecution under OCGA
§ 16-1-7 (b). In order for this procedural aspect of double jeopardy to
prohibit a prosecution, all three prongs must be satisfied.
(Citations, punctuation, and footnotes omitted.) Nicely v. State, 305 Ga. App. 387,
388 (1) (699 SE2d 774) (2010). The State acknowledges that all charges against Hill
derive from the same conduct and are within the jurisdiction of a single court. We
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therefore consider only the second prong of the test, knowledge of the prosecuting
officer.
“A defendant who asserts a plea in bar pursuant to OCGA §§ 16-1-7 and
16-1-8 bears the burden of affirmatively showing that the prosecuting attorney for the
State who handled the first prosecution had actual knowledge of the facts supporting
the charge allegedly subject to a plea in bar.” (Citations, punctuation, and footnote
omitted; emphasis supplied.) Nicely, supra, 305 Ga. App. at 388 (1). And “[t]he vital
question for resolving a plea in bar under OCGA §§ 16-1-7 and 16-1-8 pertains to the
prosecuting officer’s knowledge of all the charges on the date when the defendant’s
guilty plea was accepted to fewer than all the crimes arising from his conduct.”
(Citations and punctuation omitted.) Id. at n.5. See also Sellers v. State, 332 Ga. App.
14, 17 (1) (770 SE2d 31) (2015) (court looks to knowledge of prosecuting officer
who takes initial guilty plea, because defendant relies on that plea to bar later
prosecution.)
Here, the trial court erred in looking not to the first proceeding, but to the later
prosecution in state court, to determine the knowledge of the prosecuting officer. In
Dean v. State, 309 Ga. App. 459 (711 SE2d 42) (2011), we rejected a similar
approach. In Dean, the defendant committed a series of traffic offenses across two
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jurisdictions. Some offenses were prosecuted in probate court, while others were
transferred from municipal court to the superior court. Dean pleaded guilty to the
pending charges in the probate court, then moved to dismiss the superior court
charges on the basis of procedural double jeopardy. The trial court denied the motion,
and Dean appealed. Id. at 459. We held:
For OCGA § 16-1-7 (b) to apply, the prosecutor handling the
proceedings must actually know of the crimes. According to the State,
the knowledge we must consider is that of the district attorney, who is
handling the matter in superior court. The question, however, is whether
[the defendant’s] plea in probate court bars a subsequent prosecution.
The only “knowledge” that matters, therefore, is the knowledge of the
prosecutor who handled that plea — the probate court solicitor.
(Citations omitted; emphasis supplied.) Id. at 461. The solicitor testified that the
defendant’s counsel informed him during plea negotiations of the pending charges in
municipal court.1 Based upon this testimony, we held that the proper prosecuting
1
We have observed that “the defendant can . . . invoke the procedural protection
of § 16-1-7 (b) by the simple act of apprising the proper prosecuting officer of the
existence of any crimes arising from the same conduct which are not actually known
to that officer.” (Citation and punctuation omitted.) Nicely, supra, 306 Ga. App 387,
389 n.8 (1).
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officer had actual knowledge of all pending charges, and the superior court
prosecution was barred. Id. at 461-462.
Similarly, in Nicely, supra, the record showed that the district attorney
functioned as the prosecuting attorney in both superior and probate courts. We held
that the district attorney’s actual knowledge of the drug charge in superior court was
imputed to the assistant district attorney who represented the State at the probate
court hearing at which the defendant entered a guilty plea to a traffic citation. 305 Ga.
App. at 390 (1). And in Smith, supra, two separate prosecutions – the first by
accusation for a traffic offense and the second by indictment for controlled substances
charges – were pursued in the same court by the district attorney’s office. 259 Ga. at
352. A plea bargain negotiated by an assistant district attorney to the traffic offense
barred the prosecution of the remaining charges; the district attorney was the “proper
prosecuting officer” because his name appeared on both the accusation and the
indictment. Id. at 353.
In contrast, here Hill has failed to meet his burden of demonstrating that a
prosecuting officer in the recorder’s court, where he entered his guilty plea, had
actual knowledge of all the pending charges. In contrast to the facts shown in Smith,
supra, the name of the district attorney does not appear on the uniform traffic citation,
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nor on the records of the recorder’s court. In fact, the chief deputy clerk of the
recorder’s court testified that the traffic docket has no assigned prosecutor or assistant
district attorney and that the district attorneys do not receive notice of cases on that
docket. The circumstances here are similar to those in Chandler v. State, 305 Ga.
App. 526 (699 SE2d 840) (2010), in which separate traffic citations were filed in
recorder’s court for following too closely and DUI. Id. at 526-527. The defendant
disposed of the following too closely charge by paying a fine to the clerk of the
recorder’s court, which we noted was accomplished “without the intervention of a
prosecuting officer or a judge.” Id. at 528. We held that, even though the solicitor-
general prosecuted cases in recorder’s court as well as state court, the defendant still
had the burden of showing actual knowledge by the solicitor-general of all the
charges at the time of the disposition of the charge in recorder’s court. Id. Noting that
the defendant failed to point to any evidence in the record to show actual knowledge
on the part of that officer, we affirmed. Id. at 528.
Hill has not met his burden here. He has not established the identity of the
prosecuting officer, if any, at his guilty plea in recorder’s court; the court’s deputy
clerk testified that no prosecutor is assigned to the traffic docket on which Hill’s
expired tag charge was mistakenly entered. Nor has Hill established that any
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prosecuting officer in recorder’s court was aware of all the pending charges. He
therefore has failed to demonstrate actual knowledge of all the pending charges on
the part of the proper prosecuting officer. See Smith, supra; Dean, supra. The trial
court accordingly erred in granting Hill’s plea in bar.
Judgment reversed. Doyle, C. J. and Phipps, P. J., concur.
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