FOURTH DIVISION
DILLARD, P. J.,
RICKMAN and BROWN, JJ.
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.
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June 26, 2020
In the Court of Appeals of Georgia
A20A0050. THE STATE v. ADAMS.
RICKMAN, Judge.
The question presented in this case is whether OCGA § 16-1-8 (c), Georgia’s
statutory law governing successive prosecutions for crimes that violate both state and
federal law, prohibits the State of Georgia from prosecuting Samuel Carlton Adams
for trafficking methamphetamine after Adams, 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 he pled guilty to a weapons charge in exchange for the
dismissal of the drug charges pending against him. We conclude that it does not.
Accordingly, we reverse the trial court’s order granting his plea in bar on the charge
of trafficking methamphetamine. In so doing, we take the time to clarify our case law
and to disapprove of the holding in State v. Smith, 185 Ga. App. 694 (365 SE2d 846)
(1988), upon which the trial court relied, and similar cases that unnecessarily conflate
the constitutional protection of double jeopardy with the statutory protections against
successive prosecution offered by OCGA § 16-1-8.1
The evidence in this case is uncontroverted and witness credibility is not an
issue; accordingly, we review de novo the trial court’s application of the law to the
facts when it granted the plea in bar pursuant to OCGA § 16-1-8 (c). See State v.
Pruiett, 324 Ga. App. 789, 790 (751 SE2d 579) (2013).
The procedural history is as follows. In August 2017, Adams was arrested and
subsequently indicted in the Athens-Clarke County Superior Court on, among other
things, one count of trafficking of methamphetamine (more than 400 grams)2 (the
“State Case”). Adams pled not guilty and the State Case was placed on the December
2018 jury calendar.
1
We have circulated this decision among all nondisqualified judges of the
Court to consider whether this case should be passed upon by all members of the
Court. Fewer than the required number of judges, however, voted in favor of a
hearing en banc on the question of overruling State v. Smith, 185 Ga. App. 694 (365
SE2d 846) (1988), as well as Smith’s progeny and the cases that have relied on Smith
as set forth in Footnote 11 of this opinion.
2
See OCGA § 16-13-31 (e) (3).
2
Meanwhile, in March 2018, based on the same conduct underlying the state
charges, Adams was indicted in the United States District Court for the Middle
District of Georgia on, among other things, one count of possession with intent to
distribute methamphetamine3 and possession of a firearm by a convicted felon4 (the
“Federal Case”).
In November 2018, Adams pled guilty in the Federal Case to one count of
possession of a firearm by a convicted felon. The plea was given “in full satisfaction
of all possible federal criminal charges, known to the United States Attorney at the
time of [Adams’s] guilty plea,” and the remaining charges, including the charge of
possession with intent to distribute methamphetamine, were dismissed.
Adams then filed a plea in bar in the State Case, asserting that OCGA § 16-1-8
barred the State from prosecuting him for trafficking methamphetamine because the
drug charge had been dismissed by federal prosecutors in exchange for his guilty plea
in the Federal Case. The trial court granted the motion after concluding that the
federal prosecutor’s dismissal of the drug charge in accordance with a plea agreement
“acts as an acquittal and bars further prosecution under OCGA § 16-1-8 (c).”
3
See 21 USC § 841 (a) (1), (b) (1) (B) (viii).
4
See 18 USC §§ 922 (g) (1), 924 (a) (2).
3
The State appeals the trial court’s grant of the plea in bar,5 contending that the
trial court erred by holding that its prosecution of Adams for trafficking
methamphetamine is precluded by the statutory protections contained within OCGA
§ 16-1-8 (c). We agree.
Our analysis begins by recognizing that there is more than one potential bar to
successive prosecutions in the State of Georgia. The first is constitutional double
jeopardy. The Fifth Amendment to the United States Constitution provides that no
person shall “be subject for the same offense to be twice put in jeopardy of life or
limb.” Likewise, the Georgia Constitution provides that “no person shall be put in
jeopardy of life or liberty more than once for the same offense.” Ga. Const.1983, Art.
I, Sec. I, Par. XVIII.
States are sovereigns separate from the federal government, however, “and a
state’s power to undertake criminal prosecutions is derived from its own inherent
sovereignty.” Calloway v. State, 303 Ga. 48, 52 (2) (810 SE2d 105) (2018). “Under
the dual sovereignty doctrine, where a single act violates the law of two sovereigns
5
The State’s appeal is authorized by OCGA § 5-7-1 (a) (1), (3) (permitting the
State to appeal from an order “setting aside or dismissing any indictment” or
“sustaining a plea or motion in bar, when the defendant has not been put in
jeopardy”).
4
(e.g., the United States and a state), an individual may be prosecuted and punished by
each sovereign without violating double jeopardy.” Id. No one disputes in this case
that the State was not constitutionally barred under the dual sovereignty doctrine from
prosecuting Adams for trafficking methamphetamine merely because the federal
government elected not to do so in accordance with the terms of a plea agreement.
See id.
Nevertheless, Georgia statutory law provides protection against successive
prosecutions that extends beyond that of the protection offered by constitutional
double jeopardy. See OCGA §§ 16-1-6, 16-1-7,6 16-1-8; see generally Prater v. State,
273 Ga. 477, 480 (4) (545 SE2d 864) (2001). Those that involve successive federal
and state prosecutions are governed by OCGA § 16-1-8 (c), which provides:
A prosecution is barred if the accused was formerly prosecuted in a
district court of the United States for a crime which is within the
concurrent jurisdiction of this state if such former prosecution resulted
in either a conviction or an acquittal and the subsequent prosecution is
for the same conduct, unless each prosecution requires proof of a fact
6
Although OCGA §§ 16-1-6, 16-1-7, and 16-1-8 should be read together when
considering Georgia’s statutory protection against successive prosecutions, see
Prater, 273 Ga. at 480 (4), neither OCGA § 16-1-6 or 16-1-7 are implicated by this
case nor are they discussed in this opinion.
5
not required in the other prosecution or unless the crime was not
consummated when the former trial began.
See also Thorpe v. State, 251 Ga. App. 334, 334 (553 SE2d 171) (2001). Thus, in
order for subsection (c) to act as a bar to a state prosecution, three elements must be
met: (1) the crime must be within the State’s concurrent jurisdiction; (2) the federal
prosecution must have resulted in a conviction or acquittal; and (3) the state and
federal prosecutions must be for the same conduct and must not require proof of a fact
not required by the other (or the state crime must not have been complete at the time
of the federal trial). See Calloway, 303 Ga. at 52 (2).
The State concedes that the first and third statutory elements have been met.
The only issue here is whether, as the trial court held, the federal government’s
dismissal of the drug charge resulting from the plea agreement in the Federal Case
amounted to an “acquittal” of that charge within the context of subsection (c).
As always, when construing the meaning of a statute, “we must presume that
the General Assembly meant what it said and said what it meant.” (Citation and
punctuation omitted.) Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337)
(2013). “To that end, we must afford the statutory text its plain and ordinary meaning,
we must view the statutory text in the context in which it appears, and we must read
6
the statutory text in its most natural and reasonable way, as an ordinary speaker of the
English language would.” (Citations and punctuation omitted.) Id. at 172-73 (1) (a).
“[I]f the statutory text is clear and unambiguous, we attribute to the statute its plain
meaning, and our search for statutory meaning is at an end.” (Citation and
punctuation omitted.) Id. at 173 (1) (a).
The plain language of subsection (c) bars the State from prosecuting Adams if
the drug crime in the Federal Case “resulted in either a conviction or an acquittal.”
It did not.
Although “acquittal” is not defined in the statute itself, its dictionary definition
is “[t]he legal certification, [usually] by jury verdict, that an accused person is not
guilty of the charged offense; an official statement in a court of law that a criminal
defendant is not guilty.” Black’s Law Dictionary (11th ed. 2019). A prosecutor’s
agreement to dismiss a criminal charge in exchange for a guilty plea on different
charge is, in essence, a contract between the defendant and the government. See
generally Syms v. State, 331 Ga. App. 225, 227 (770 SE2d 305) (2015). But that
dismissal alone in no way amounts to a legal determination of the defendant’s guilt
or innocence on the dismissed charge and, thus, does not amount to an “acquittal” for
the purposes of OCGA § 16-1-8. Cf. Arnold v. State, 352 Ga. App. 777, 779-880 (835
7
S.E.2d 759) (2019) (holding that the reindictment by the State of a criminal charge
that had been nolle prossed in a previous prosecution pursuant to a pretrial plea
agreement did not amount to an “acquittal” so as to be barred by OCGA § 16-1-8 (b),
but the subsequent prosecution was nonetheless barred by the plea agreement); see
also Sample v. State, 232 Ga. App. 690, 692 (2) (503 SE2d 576) (1998) (recognizing
that the State’s consent to an order of nolle prosequi in the context of a plea
agreement is not a concession that the crime was not committed).
In holding otherwise, the trial court relied on State v. Smith, 185 Ga. App. 694
(365 SE2d 846) (1988). Smith did not involve successive prosecutions by federal and
state governments under subsection (c), which is the only subsection governing
prosecutions by different sovereigns. See Thorpe, 251 Ga. App. at 334. Rather, Smith
invoked the “rule of criminal res judicata” contained in subsection (b) (1), involving
successive prosecutions by the same sovereign, i.e. the State. See Smith, Ga. App. at
695-696; Drinkard v. Walker, 281 Ga. 211, 214 (636 SE2d 530) (2006). Regardless,
like subsection (c), subsection (b) (1) bars a second prosecution when, among other
things, the first prosecution “[r]esulted in either a conviction or an acquittal.”7
7
In its entirety, OCGA § 16-1-8 (b) provides:
A prosecution is barred if the accused was formerly prosecuted for a
8
Because the relevant language of subsection (b) (1) mirrors that of subsection (c), and
because the trial court’s reliance on Smith was reasonable, we will take the time to
address its faulty reasoning.
Smith involved a defendant who was charged in state court under a four count
accusation related to her driving under the influence of alcohol. See Smith, 185 Ga.
App. at 694. She entered into an agreement with an assistant solicitor pursuant to
which she agreed to plead guilty to two of the charges in exchange for the State’s
dismissal of the other two. Id. at 694. The trial court accepted the plea and the
remaining charges were dismissed. Id. Prior to sentencing, the solicitor, claiming that
his assistant failed to accurately follow instructions, attempted to prosecute the
different crime or for the same crime based upon different facts, if such
former prosecution:
(1) Resulted in either a conviction or an acquittal and the subsequent
prosecution is for a crime of which the accused could have been
convicted on the former prosecution, is for a crime with which the
accused should have been charged on the former prosecution (unless the
court ordered a separate trial of such charge), or is for a crime which
involves the same conduct, unless each prosecution requires proof of a
fact not required on the other prosecution or unless the crime was not
consummated when the former trial began; or
(2) Was terminated improperly and the subsequent prosecution is for a
crime of which the accused could have been convicted if the former
prosecution had not been terminated improperly.
9
defendant on one of the previously dismissed charges. Id. at 694-95. In a rather
inartfully worded opinion, the Smith Court held that subsection (b) (1) precluded the
solicitor’s successive prosecution, a holding that required an implicit conclusion that
a dismissal of that count amounted to an “acquittal” under OCGA § 16-1-8.8
Applying the same rules of statutory construction to subsection (b) (1) that we
applied to the same language of subsection (c) above, we overrule Smith to the extent
that it can be read to equate the dismissal of a criminal charge pursuant to a guilty
plea with an “acquittal” for the purposes of OCGA § 16-1-8 (b) (1). See Lathrop v.
Deal, 301 Ga. 408, 442 (III) (C) (801 SE2d 867) (2017) (“[W]hen the same words are
used in different parts of a single constitutional or statutory enactment, the courts
generally assume – absent some clear indication otherwise – that the words are used
in the same sense.”); Allen v. Donaldson, 12 Ga. 332, 335 (1852) (“[T]he same term
or phraseology occurring in the same [s]tatute, is to receive the same interpretation,
unless there be something in the [statute] which renders this construction manifestly
improper.”).
8
We note that Smith could have been decided using contract principles. See
Syms v. State, 331 Ga. App. 225, 227 (770 SE2d 305) (2015) (“A plea agreement is,
in essence, a contract between a defendant and the State.”) (citation and punctuation
omitted).
10
But Smith is problematic for another reason. By framing its holding within the
context of OCGA § 16-1-8 (b) (1) and yet failing to engage in any meaningful
statutory analysis, Smith relied on and perpetuated misguided precedent that conflates
the concept of constitutional double jeopardy with the statutory protection afforded
by OCGA § 16-1-8.9 Specifically, Smith predicated the application of OCGA § 16-1-8
(b) on a defendant having first been “placed in jeopardy,”10 relying on case law that
injected jeopardy into the definition of “prosecuted” for the purposes of the statute.
Smith, 185 Ga. App. at 696; see also Cochran v. State, 176 Ga. App. 58, 60 (335
SE2d 165) (1985) (“For purposes of . . . OCGA § 16-1-8, a defendant has been
9
Some of the confusion is likely spawned from our use of the term “procedural
double jeopardy” when referring to OCGA § 16-1-8 (b) (in conjunction with OCGA
§ 16-1-7 (b)). See generally Pruiett, 324 Ga. App. at 794 (1) (b).
10
Smith further held that, “a plea of guilty . . . with its entry on the record and
acceptance by the trial judge constitutes jeopardy.” Id. at 696. We note that if and
when jeopardy attaches to a guilty plea is itself an issue of some debate. Compare
generally U.S. v. McIntosh, 580 F3d 1222, 1227 (III) (11th Cir. 2009) (“Jeopardy
normally attaches when the court unconditionally accepts a guilty plea.”) (citation and
punctuation omitted), with U.S. v. Santiago Soto, 825 F2d 616, 620 (1st. Cir. 1987)
(“We hold that jeopardy did not attach when the district court accepted the guilty plea
to the lesser included offense and then rejected the plea without having imposed
sentence and entered judgment.”). For the purpose of this appeal, however, we need
to go no further than recognizing that the attachment of jeopardy plays no part in the
protections offered by OCGA § 16-1-8.
11
prosecuted on an indictment or accusation only after he has been initially placed in
jeopardy.”) (citation and punctuation omitted).
But nothing in the plain language of OCGA § 16-1-8 predicates the application
of its provisions on the attachment of jeopardy. Rather, pertinent to our holding, the
bar is established if an accused was “formerly prosecuted” and, as previously
discussed, the prosecution resulted in “either a conviction or an acquittal.” See OCGA
§ 16-1-8 (b) (1), (c). “Prosecution” is defined as “all legal proceedings by which a
person’s liability for a crime is determined,” and a “conviction” includes “a final
judgment of conviction entered . . . upon a plea of guilty.” OCGA § 16-1-3 (4), (14).
Simply put, jeopardy plays no part in the determination of whether a successive
prosecution is statutorily barred by OCGA § 16-1-8.
For these reasons, we overrule Smith to the extent that it can be read to stand
for the proposition that the dismissal of a criminal charge amounts to an “acquittal”
for the purposes of OCGA § 16-1-8, and further overrule Smith, its progeny, and the
12
cases in which it has been cited for the proposition that jeopardy must attach before
the statutory bar set forth in OCGA § 16-1-8 is triggered.11
Judgment reversed. Dillard, P. J., and Brown, J., concur.
11
Those cases include, but are not necessarily limited to, Goodwin v. State, 341
Ga. App. 530 (802 SE2d 3) (2017); State v. Jones, 290 Ga. App. 879 (661 SE2d 573)
(2008); State v. Daniels, 206 Ga. App. 443 (425 SE2d 366) (1992); Geckles v. State,
177 Ga. App. 70 (338 SE2d 473 (1985); Cochran v. State, 176 Ga. App. 58 (335
SE2d 165) (1985); Caldwell v. State, 171 Ga. App. 680 (320 SE2d 888) (1984).
13