Dorsey v. State, 30983
| Decision Date | 03 November 1976 |
| Docket Number | No. 30983,30983 |
| Citation | 230 S.E.2d 307,237 Ga. 876 |
| Parties | Larry Cornell DORSEY v. The STATE. |
| Court | Georgia Supreme Court |
DeWitt R. Dent, Augusta, for appellant.
H. Reginald Thompson, Dist. Atty., Louisville, Arthur K. Bolton, Atty. Gen., Isaac Byrd, Asst. Atty. Gen., Atlanta, for appellee.
This appeal presents the issue of the constitutionality or unconstitutionality of a provision of the Criminal Code of Georgia, Code Ann. § 26-507(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 not required in the other prosecution, or the crime was not consummated when the former trial began.'
The appellant was indicted by a federal grand jury and also by a Georgia grand jury for crimes that arose out of the same transaction. The appellant entered pleas of guilty in the United States District Court for the Southern District of Georgia. Prior to his arraignment on the charges contained in the Georgia indictment, he filed his plea-in-bar of his prosecution by Georgia and relied on Code Ann. § 26-507(c) quoted above.
The state and the appellant stipulated that the offenses charged in the federal and state indictments were the same and arose out of the same conduct by the appellant for which the appellant had been convicted and sentenced in the United States District Court.
The district attorney contended that Code Ann. § 26-507(c) was an unconstitutional statute in that it ousted the superior courts in Georgia of their 'exclusive jurisdiction' as provided for in the Georgia Constitution, Code Ann. § 2-3901.
The trial judge ruled in favor of the district attorney's position; he held that the exclusive jurisdiction of the superior courts could not be altered or surrendered to another court or sovereign by an Act of the Georgia General Assembly; and he overruled the appellant's plea-in-bar of prosecution by the state.
A jury trial followed on the state charges; the appellant was convicted and sentenced; and he has come to this court urging, along with other enumerated errors, that his plea-in-bar should have been sustained, and that his convictions by the state cannot stand.
We agree with the appellant's position on this issue, and the judgment below must be reversed.
Code Ann. § 26-507(c) does not oust the Georgia superior courts of their 'exclusive jurisdiction' over the trial of capital felonies. It is a procedural statute as distinguished from a jurisdictional statute; it merely bars a prosecution by the State if the accused was formerly prosecuted and convicted in a District Court of the United States for a crime over which the federal court had jurisdiction and over which the superior court had concurrent jurisdiction; and such a statute can be enacted by the Georgia General Assembly without contravening the constitutional provision that endows the superior courts with exclusive jurisdiction in this state over the trial of capital felonies.
In State v. Estevez, 232 Ga. 316, 206 S.E.2d 475 (1974), this court said: P. 319, 206 S.E.2d p. 478.
In the Committee Notes, Code Ann. Ch. 26-5, we find this comment:
We respectfully disagree with the ruling made below; a statutory bar to a criminal prosecution and a statutory limitation upon a criminal prosecution are prosedural prohibitions that do not affect jurisdiction in any way; Code Ann. § 26-507(c) is a constitutional statute; and the plea-in-bar of prosecution by the State should have been sustained.
Judgment reversed.
All the Justices concur, except JORDAN, J., who dissents.
Appellant Larry Cornell Dorsey was convicted in the Superior Court of Jefferson County, Georgia, for murder, armed robbery, 2 counts of kidnapping, and 2 counts of illegal possession of firearms, and was acquitted on one count of kidnapping. He was sentenced to death for murder, life imprisonment for the armed robbery, 20 years on each count of kidnapping and 5 years on each count of possession of firearms. The trial court set aside the convictions for possession of firearms.
The threshold question on appeal is whether his prosecution and conviction in Jefferson Superior Court was barred by Code Ann. Sec. 26-507(c) since he had previously entered a plea of guilty to crimes arising from the same conduct in the United States District Court for the Southern District of Georgia, for which he received the maximum sentence of life imprisonment under federal law.
A brief review of the facts shows that the appellant and two companions, Julius Rawls and Lee Houston, left Atlanta on December 17, 1974, and traveled to Wrens, Georgia where they spent the night in a motel. On December 18, 1974 they entered the First State Bank of Wrens armed with a sawed-off shotgun and pistols and proceeded to rob the bank. They herded 9 employees and 2 customers into the vault and closed the door. As they were gathering up the money, the chief of police of Wrens, responding to an alarm, entered the front door of the bank. A shootout ensued between the chief and Rawls, the only robber in his view at that time. Rawls was hit, ordered to lie on the floor, but ran out as the chief was reloading his pistol. He was pursued by the chief but escaped and was later apprehended. The chief returned to the bank where he was met by appellant and Houston who were holding two women employees in front of them as hostages. Houston was armed with a sawed-off shotgun and the appellant Dorsey with a pistol. They were in the rear of the bank facing the chief and the front of the bank. After several more shots were fired by the chief and the robbers, the woman hostage held by Houston slumped to the floor, dead from a pistol bullet which entered her back, exited from her stomach and went through the front glass door of the bank.
Houston then secured another woman hostage and threatened to kill everyone in the bank unless the police left, which they did. Appellant and Houston then telephoned the police and demanded that a car be sent to the rear of the bank for their escape. This demand was met with the understanding that the hostages would be released 5 miles from town. Appellant and Houston with the 2 hostages left in the car and when they were not released, police set up a road block in Greene County. Another shootout followed in which Houston was killed and appellant captured.
Appellant and Rawls were indicted for the resulting crimes by the Jefferson County grand jury on January 31, 1975. Appellant was subsequently indicted on March 14, 1975 by a federal grand jury for armed robbery, Kidnapping, and unlawfully killing Mrs. Lamb while attempting to avoid apprehension. On March 18, 1975, he entered a plea of guilty and was subsequently sentenced in federal court.
Appellant then filed a plea in bar to his prosecution in Jefferson Superior Court based on the above mentioned statute. The trial court declared Code Ann. § 26-507(c) to be unconstitutional, overruled the plea in bar, put the appellant on trial which resulted in his conviction.
The appellant relies on Code Ann. § 26-507(c) (Ga.L.1968, pp. 1249, 1267) which provides as follows:
'(c) a prosecution is barred if the accused was formerly rposecuted 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 not required in the other prosecution, or the crime was not consummated when the former trial began.'
The state and the appellant stipulated before trial that the...
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