Alexander v. State

• Decision Date: 20 June 1973
• Docket Number: No. 48207,No. 2,48207,2
• Parties: N. C. ALEXANDER v. The STATE
• Court: Georgia Court of Appeals

Page 918

199 S.E.2d 918

129 Ga.App. 395

N. C. ALEXANDER v. The STATE.

No. 48207.

Court of Appeals of Georgia, Division No. 2.

June 20, 1973.

Rehearing Denied July 18, 1973.

Syllabus by the Court

1. A record showing a delay of 12 days between offense and arrest and containing no evidence of prejudice to the accused as a result of this delay, will not support a claim of denial of due process under the Federal and State Constitutions.

2. Accused is not subjected to double jeopardy by criminal prosecution for violation of state statute governing alcoholic beverage control when he has previously been subjected to a license suspension and potential fine for the same conduct in a proceeding before the State Revenue Commissioner.

Nicholas Charles Alexander, under charges of multiple violations of the laws of Georgia and the regulations of the State Revenue Commissioner concerning the sale of alcoholic beverages on Sunday in cocktail lounges owned by him, appeals the trial court's denial of two motions to dismiss the accusations. We find the trial judge's decisions on both motions correct and affirm.

The arguments raised by appellant in support of his motion and urged here are two. First, it is claimed that he suffered a denial of due process because 12 days elapsed between June 25, 1972, the date on which the first of the alleged illegal sales occurred, and July 7, the date of his arrest by agents of the State Revenue Commissioner, which delay prejudiced his ability to defend himself. Second, in an administrative hearing before the Commissioner an order issued suspending his license for approximately 45 days and carrying the additional threat of a fine, though no fine has yet been imposed. Against this background, he asserts, the now-threatened state prosecution constitutes double jeopardy.

Drew, Hendrix & Shea, Bart E. Shea, Savannah, for appellant.

Andrew J. Ryan, Jr., Sol., Howard A. McGlasson, Jr., Savannah, for appellee.

HALL, Presiding Judge.

1. In support of the due process claim, appellant relies on Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210 (1965), in which the court reversed a conviction for narcotics violations where the complaint against defendant was not sworn out until seven months after the alleged offense of sale to an undercover agent. However, the court there required, and defendant showed, prejudice. Appellant here does not.

In Ross the court found that defendant was a man of limited education with little to differentiate one day from another, who kept no diary or other record, received little mail, and, at the time in question, had no regular employment. He testified that he could not remember, or, even after intensive discussions with his attorney, reconstruct the events of the day of the alleged offense. Id., pp. 213, 214. Additionally neither the defendant, the one witness, nor the undercover agent had any independent recollection of the day in question. Id., pp. 214, 215.

It was on this highly particularized record with indications of definite prejudice to the defendant occasioned by 'a purposeful delay of seven months between offense and arrest,' (id., p. 215), that the court reversed the conviction but specifically declined to give the ruling constitutional dimensions, basing it instead upon the supervisory powers of the court over proceedings in the lower federal courts. Id., p. 216.

More importantly, in United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468, the Supreme Court considered the right to a speedy prosecution and concluded that the Constitution did not require dismissal of a federal indictment where three years elapsed between the occurrence of the acts and the filing of the indictment, in a case where the accused persons were unable to show actual prejudice to the conduct of the defense. The Court also cast doubt on the general applicability of Ross. 404 U.S. 317, n. 8, 92 S.Ct. 455.

The record now before us is devoid of evidence of prejudice to appellant caused by this delay. His affidavit in support of his motion contains only the conclusory statement that '. . . by reason of the delay between the time of the alleged violations and the time at which he was taken into custody, his ability to defend himself against said charges has been prejudiced, that such delay was unreasonable and unjust and has denied deponent . . . due process . . .'

On a record showing a delay of only 12 days and presenting no evidence of prejudice, we hold that appellant has suffered no deprivation of due process.

2. The Fifth Amendment prohibition against putting any person twice in jeopardy of life or limb for the same offense is enforceable against the states through the Fourteenth Amendment, North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. However, the prohibition applies only to twice subjecting an individual to criminal processes for the same offense against the same sovereign; there is no bar to the sovereign's imposing both civil and criminal penalties for the same act. One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972); Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 82 L.Ed. 917 (1938); Cushway v. State Bar of Georgia, 120 Ga.App. 371, 170 S.E.2d 732, cert. denied, 120 Ga.App. 886, cert. denied, 398 U.S. 910, 90 S.Ct. 1705, 26 L.Ed.2d 71, reh. denied, 399 U.S. 938, 90 S.Ct. 2256, 26 L.Ed.2d 810. Moreover, the constitutional provision against double jeopardy is rooted in history, and precedent carries impressive authority. Gore v. United States, 357 U.S. 386, 392, 78 S.Ct. 1280, 2 L.Ed.2d 1405.

Appellant Alexander's double jeopardy claim can, therefore, succeed only if the proceedings held before the Revenue Commissioner were in the nature of criminal processes former subject to which would constitute a bar to the present state prosecution. Because those proceedings were clearly civil and remedial, no possibility of double jeopardy is presented.

Appellant grounds his position in...