FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and MERCIER, JJ.
NOTICE: Motions for reconsideration m us t be
physically re ceived in our clerk’s office within ten days
of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
June 5, 2017
In the Court of Appeals of Georgia
A17A0066. GOODWIN v. THE STATE.
MERCIER, Judge.
Valerie Goodwin was charged by accusation in the Superior Court of Hall
County with obtaining a controlled substance by theft (hydrocodone) (Count 1) and
misdemeanor theft by taking of tramadol (Count 2). Following a bench trial, Goodwin
was found guilty of both offenses, and she appealed the judgment of conviction and
sentence entered on those verdicts. In Case No. A15A2213 (“Goodwin I”), this Court
reversed Goodwin’s conviction on Count 1, because Goodwin had not waived formal
indictment of that offense, a felony, and indictment was required pursuant to OCGA
§ 17-7-70 (a). Thus, we found that the Superior Court of Hall County did not have
jurisdiction over that offense. We affirmed Goodwin’s conviction on Count 2.
The State subsequently indicted Goodwin for obtaining a controlled substance
by theft (hydrocodone), with the charging language in the indictment being identical to
that in Count 1 in the former accusation. Goodwin filed a Plea in Bar and Motion to
Dismiss the Indictment, which the trial court denied. Goodwin appeals, contending that
the “subsequent prosecution is barred by the procedural aspect of the double jeopardy
provisions of the U.S. and Georgia Constitutions contained in OCGA §§ 16-1-7 and
16-1-8, and by the principle of res judicata.” For the reasons that follow, we agree that
subsequent prosecution of this offense is barred, and reverse the trial court’s denial
of Goodwin’s plea in bar.
“In reviewing a trial court’s ruling on a motion for plea in bar, where the
evidence is uncontroverted and no question is presented regarding the credibility of
witnesses, we review de novo the trial court’s application of the law to the undisputed
facts.” Pierce v. State, 294 Ga. 842, 843 (1) (755 SE2d 732) (2014).
The United States and Georgia Constitutions proscribe a defendant’s
being twice placed in jeopardy for the same offense. United States
Constitution, Fifth Amendment; Georgia Constitution, Art. I, Sec. I, Par.
XVIII. O.C.G.A. §§ 16-1-6, 16-1-7, and 16-1-8 extend the proscription
of double jeopardy beyond those constitutional limits by placing
limitations upon multiple prosecutions, convictions and punishments for
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the same criminal conduct. Stone v. State, 166 Ga. App. 245 (1) (304
SE2d 94) (1983).
State v. Martin, 173 Ga. App. 370 (326 SE2d 558) (1985).
These statutory provisions distinguish between two aspects of double
jeopardy – first, limitations upon multiple prosecutions for crimes arising
from the same conduct (referred to as the procedural bar of double
jeopardy); and, second, limitations upon multiple convictions or
punishments that may be imposed for such crimes (referred to as the
substantive bar of double jeopardy).
Stephens v. Hopper, 241 Ga. 596, 598-599 (1) (247 SE2d 92) (1978) (discussing
former OCGA §§ 26-505, 26-506, 26-507).
OCGA § 16-1-8 (b) provides, in pertinent part, that:
[a] prosecution is barred if the accused was formerly prosecuted for a
different crime or for the same crime based on upon different facts, if
such former prosecution: (1) Resulted in either a conviction or an
acquittal and the subsequent prosecution is for a crime for 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.
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OCGA § 16-1-8 (d) provides, in pertinent part, that:
[a] prosecution is not barred within the meaning of [OCGA § 16-1-8] if:
(1) The former prosecution was before a court which lacked jurisdiction
over the accused or the crime; or (2) Subsequent proceedings resulted
in the invalidation, setting aside, reversal, or vacating of the conviction,
unless the accused was thereby adjudged not guilty or unless there was
a finding that the evidence did not authorize the verdict.
OCGA § 16-1-7 (b) pertinently provides that “[i]f the several crimes arising from the
same conduct are known to the proper prosecuting officer at the time of commencing
the prosecution and are within the jurisdiction of a single court, they must be
prosecuted in a single prosecution.”
To constitute a “previous prosecution” within the meaning of O.C.G.A.
§§ 16-1-7 (b) and 16-1-8 (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 him. . . .As a general rule, a person is in jeopardy
when he is regularly charged with a crime before a court of competent
jurisdiction and a trial has commenced.
State v. Smith, 185 Ga. App. 694, 696 (365 SE2d 846) (1988) (citations omitted).
A defendant is placed in constitutional jeopardy when, in a court of
competent jurisdiction with a sufficient indictment, he has been arraigned,
has pled and a jury has been impaneled and sworn[, whereas] the
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doctrine of procedural double jeopardy, which is subsumed under the
rubric of O.C.G.A. § 16-1-7 . . . protects a defendant from multiple
prosecutions arising from the same conduct in situations where
constitutional double jeopardy would not be a defense.
Martin, supra at 371 (citations, punctuation and footnote omitted).
Here, it is indisputable that the two offenses (the misdemeanor charge of which
Goodwin stands convicted, and the felony charge that was improperly accused in her
first trial and for which the State has subsequently indicted her) arose from the same
conduct and were known to the prosecuting officer at the time the previous
prosecution was commenced. The offenses were within the jurisdiction of a single
court, in that they could both be tried in the Superior Court of Hall County. See
Etienne v. State, 298 Ga. App. 149, 150 (679 SE2d 375) (2009); Mann v. State, 160
Ga. App. 527, 528 (160 SE2d 527) (1981); Brock v. State, 146 Ga. App. 78, 79-80
(245 SE2d 442) (1978). Goodwin was placed in jeopardy as to Count 2 (theft by
taking of tramadol, a misdemeanor), and her trial resulted in a conviction on that count.
Although constitutional jeopardy did not attach to Count 1 (obtaining a controlled
substance by theft (hydrocodone)) in the former prosecution because that offense was
not within the jurisdiction of the trial court as a result of the State’s failure to indict it,
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constitutional jeopardy did attach to the misdemeanor in Count 2, and thus procedural
double jeopardy prevents a subsequent prosecution of offenses arising from the same
transaction. See Martin, supra; McCannon v. State, 252 Ga. 515, 517 (315 SE2d 413)
(1984); State v. Stowe, 167 Ga. App. 65, 66-67 (2) (306 SE2d 663) (1983); compare
Armstrong v. State, 281 Ga. App. 297 (635 SE2d 880) (2006) (indictment and retrial
were not barred where the offenses, all felonies which required indictment, were
charged on an accusation and a jury was impaneled and sworn to try the defendant on
the accusation, which was then dismissed, because the trial court did not have
jurisdiction over those offenses); McCrary v. State, 254 Ga. 382, 383-384 (2) (329
SE2d 473) (1985) (defendant could be re-indicted for felony murder with aggravated
assault as the underlying felony when he had previously been found guilty of felony
murder as a lesser included offense of malice murder, where the reversal was the result
of the trial court having instructed the jury on the underlying felony offense of robbery,
which was not included in the indictment, but where aggravated assault was included
in the former indictment).
The burden was on the State to properly indict the offense of obtaining a
controlled substance by theft (hydrocodone), and to prosecute that charge
simultaneously with the offense of theft by taking of tramadol. See Martin, supra. The
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State contends that it did charge Goodwin with obtaining a controlled substance by
theft in the former prosecution and “attempt[ed] to prosecute both offenses in one
prosecution.” However, Goodwin was not properly charged in the Superior Court of
Hall County. It is not sufficient that Goodwin was “on notice” of the felony offense,
as the State argues. Further, the State is correct that Goodwin’s conviction on the
count in question was not overturned on the basis of insufficient evidence, and thus
OCGA § 16-1-8 (d) provides that “a prosecution is not barred within the meaning of”
OCGA § 16-1-8. However, OCGA § 16-1-7 (b) still applies.
The State argues that cases such as Mann, supra, are distinguishable from the
instant case on the basis that Mann “involved a guilty plea as a result of criminal
conduct. . . .that the defendant could have expected to end criminal prosecution.” This
argument is unavailing. “[A] plea of guilty to an indictment or complaint with its entry
on the record and acceptance by the trial judge constitutes jeopardy for purposes of
O.C.G.A. §§ 16-1-7 (b) and 16-1-8 (b).” Smith v. State, 185 Ga. App. 694, 696 (365
SE2d 846) (1988).
In denying Goodwin’s plea in bar, the trial court relied on Keener v. State, 238
Ga. 7 (230 SE2d 846) (1976), and the State relies on that case in its argument to this
Court. In Keener, the defendant waived indictment and entered guilty pleas on several
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accusations, on charges including armed robbery, burglary, and possession of a
sawed-off shotgun. Id. The guilty pleas and sentences on the armed robbery counts
were set aside for lack of jurisdiction because indictment could not be waived on
capital felony charges. Id. When he was indicted for the two armed robbery counts,
Keener contended that, because he stood convicted and punished for possession of
a sawed-off shotgun during the armed robberies and the crime was legally and factually
the same offense as the armed robberies, he could not be subsequently prosecuted on
the armed robbery indictments. Id.
The Supreme Court of Georgia held as follows:
[w]here crimes are tried separately it is generally held that if multiple
convictions arising out of a single prosecution are barred they will
likewise be barred from successive prosecution. Therefore when crimes
are to be prosecuted separately the more serious known crimes should
be prosecuted first to avoid the conviction of a lesser crime barring a
subsequent prosecution for a more serious crime. But, where there is a
conviction of two crimes in a single prosecution one of which is included
in the other and the defendant obtains a reversal of the major crime for
lack of jurisdiction the remaining conviction of the lesser crime does not
bar a retrial on the major crime.
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Id. at 8 (emphasis supplied). The instant case, in contrast, does not involve included
or lesser crimes, but two separate and distinct offenses.
The trial court also cited Pierce v. State, supra. The reasoning in that case does
not apply here, as Pierce did not involve a subsequent prosecution for the same crime.
Instead, Pierce dealt with a trial court’s order authorizing a defendant to withdraw his
original guilty pleas and convictions, the vacating of that order on the appellant’s own
motion, and the subsequent reinstatement of those guilty pleas and convictions.
Pierce, supra at 843-844 (1). The Pierce Court explained, “there was not in this case
a second prosecution.” Id. at 844.
Judgment reversed. Barnes, P. J., and McMillian, J., concur.
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