Dean v. State, A94A1266

• Decision Date: 05 October 1994
• Docket Number: No. A94A1266,A94A1266
• Citation: 449 S.E.2d 158,214 Ga.App. 768
• Parties: DEAN v. The STATE.
• Court: Georgia Court of Appeals

Page 158

449 S.E.2d 158

214 Ga.App. 768

DEAN v. The STATE.

No. A94A1266.

Court of Appeals of Georgia.

Oct. 5, 1994.

Ralph M. Hinman III, Dalton, for appellant.

Jack O. Partain III, Dist. Atty., Bert M. Poston, Jr., Asst. Dist. Atty., for appellee.

RUFFIN, Judge.

Appellant was charged in two separate Georgia Uniform Traffic Citations with weaving over the roadway and driving under the influence. He filed special and general demurrers to the citations on the ground that they were fatally defective because they failed to identify the specific criminal conduct and statutory provisions allegedly violated by appellant. The following week appellant's arraignment and trial commenced in the Probate Court of Whitfield County. Appellant's trial counsel interrupted the testimony of the first witness to assert the demurrers. After hearing argument of counsel, the court announced that it would take the matter under advisement until July 13, 1993. However, on June 21, 1993, the court, sua sponte, bound the case over to superior court without ruling on the demurrers. Contemporaneously with the entry of the "Bind-Over Order," appellant filed a written objection to the bind-over. Thereafter, a new accusation was filed in the superior court charging appellant with driving under the influence. Appellant then filed a plea of former jeopardy, which the superior court denied. The court concluded that by binding the case over to the superior court, the probate court, in effect, agreed with appellant's special demurrers and since proper accusations were not filed, the probate court proceeding was a nullity. Therefore, the prosecution could proceed in superior court. This appeal followed.

The superior court held, essentially in accordance with OCGA § 16-1-8(d)(1) and Roberts v. State, 171 Ga.App. 131(1), 319 S.E.2d 42 (1984), that the prosecution of appellant in superior court was not barred because the probate court lacked jurisdiction over the appellant since a proper accusation was not filed. However, the instant case is not a situation in which no accusation was filed at all, as was the case in Roberts. Nor are the citations deemed "improper" such that a prosecution based thereon would be a nullity since the defects cited by appellant in his demurrers were amendable. See Gilbert v. State, 17 Ga.App. 143, 86 S.E. 415 (1915); Goldsmith v. State, 2 Ga.App. 283, 58 S.E. 486 (1907). "It is well-settled that when an indictment or accusation charges a crime which is capable of being committed in more than one way, but fails to charge the manner in which the crime was committed, the indictment or accusation is subject to special demurrer because a defendant is entitled to know how the State will prove the crime charged. [Cits.]" Scott v. State, 207 Ga.App. 533, 535, 428 S.E.2d 359 (1993). Thus, contrary to the findings of the superior court, the probate court had jurisdiction over the case, and the probate court proceeding was not a nullity. Accordingly, we must determine whether the appellant was placed in jeopardy in the probate court.

The trial court held and the State argues that appellant waived the right to assert double jeopardy because the probate court proceeding was terminated in response to appellant's demurrers.

"No person shall be put in jeopardy of life or liberty more than once for the same offense except when a new trial has been granted after conviction or in case of mistrial." Ga. Const. of 1983, Art. I, Sec. I, Par. XVIII. "A prosecution is barred if the accused was formerly prosecuted for the same crime based upon the same material facts, if such former prosecution ... [w]as terminated improperly ... in a trial before a court without a jury, after the first witness was...