Garrett v. State
Decision Date | 13 October 2010 |
Docket Number | No. A10A1294.,A10A1294. |
Parties | GARRETT v. The STATE. |
Court | Georgia Court of Appeals |
Brandon A. Bullard, Ashley F. Campbell, for appellant.
Fred A. Lane, Jr., Dist. Atty., Thomas D. Lyles, Asst. Dist. Atty., for appellee.
Gary Stephen Garrett appeals the trial court's denial of his motion for plea in bar on the ground of double jeopardy in connection with a charge of serious injury by vehicle (OCGA § 40-6-394). "The appellate standard of review of a grant or denial of a double jeopardy plea in bar is whether, after reviewing the trial court's oral and written rulings as a whole, the trial court's findings support its conclusion." (Citation and punctuation omitted.) Strickland v. State, 300 Ga.App. 898, 686 S.E.2d 486 (2009). But "[w]here the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, we review de novo the trial court's application of the law to undisputed facts." (Citation omitted.)Summers v. State, 263 Ga.App. 338, 587 S.E.2d 768 (2003).
The underlying facts in this case are not in dispute. On August 10, 2008, Garrett drove under the influence of alcohol (OCGA § 40-6-391(a)(5)), had an open container of alcohol (OCGA § 40-6-253) and failed to yield the right of way (OCGA § 40-6-71), resulting in an automobile collision. He pled guilty to these state violations in the Municipal Court of Hiram, Georgia on September 26, 2008, and he was sentenced to twenty-four months on probation, two days to serve in the Paulding County jail, and $1,046 in fines, surcharges and other costs.
Garrett stipulated in the trial court that police and prosecutors were unaware at the time of this plea that the collision had resulted in a serious injury to anyone. Later, when police were notified that Terry Powell had been seriously harmed in the wreck, the case was referred to the Paulding County District Attorney. A grand jury subsequently indicted Garrett on the charge of serious injury by vehicle. The indictment alleged that Garrett caused bodily harm to Powell, by rendering his ankle useless, "through a violation of OCGA § 40-6-391, Driving Under the Influence of Alcohol."
Garrett filed a plea in bar to the indictment on the ground that he had already pled guilty and been sentenced on charges arising from the same set of facts. Contrary to the State's assertion on appeal, Garrett's plea in bar alleged double jeopardy violations under both the United States Constitution and Georgia statutory law, OCGA § 16-1-7. At the plea hearing, however, Garrett abandonedhis claims under state law and instead relied solely upon the substantive protections embodied in the Fifth and Fourteenth Amendments of the United States Constitution.1 After hearing argument from the parties, the trial court denied the plea in bar, relying upon OCGA §§ 16-1-7(b) and 16-1-8.
"The double jeopardy clause of the Fifth Amendment to the United States Constitution provides that no person shall be subject for the same offence to be twice put in jeopardy of life or limb." (Punctuation omitted.) Strickland, 300 Ga.App. at 898, 686 S.E.2d 486. "Double jeopardy protects against three types of abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense." Nolen v. State, 218 Ga.App. 819, 820, 463 S.E.2d 504 (1995), citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).
Baker v. State, 263 Ga.App. 462, 464(1), 588 S.E.2d 288 (2003).2
Thus, when "conviction of a greater crime ... cannot be had without conviction of the lesser crime, ... the Double JeopardyClause bars prosecution for the lesser crime after conviction of the greater one." Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977). And "[i]f all the elements of one of the two crimes are included in the other, the two crimes are the same as a matter of law and successive prosecutions are barred, no matter whether the greater or lesser offense is tried first." (Citation omitted.) Potts v. State, 261 Ga. 716, 718(1)(a), 410 S.E.2d 89 (1991). See also Gerisch v. Meadows, 278 Ga. 641, 643(2), 604 S.E.2d 462 (2004) ( ); State v. Williams, 214 Ga.App. 701, 702, 448 S.E.2d 700 (1994) (same).
The United States Supreme Court has "recognized that the Blockburger test focuses on the proof necessary to prove the statutory elements of each offense, rather than on the actual evidence to be presented at trial." Illinois v. Vitale, 447 U.S. 410, 416, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980), abrogated on other grounds in United States v. Dixon, 509 U.S. 688, 700, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). "Thus ... if each statute requires proof of an additional fact which the other does not, the offenses are not the same under the Blockburger test." (Citations and punctuation omitted; emphasis in original.) Id. The proper analysis, therefore, "focuses on the proof necessary to establish the statutory elements of each offense, not the actual evidence presented at trial." (Citations omitted.) United States v. Bobb, 577 F.3d 1366, 1372 (11th Cir.2009).
In this case, proof that Garrett was guilty of DUI under OCGA § 40-6-391 is a required element for convicting him of serious injury by vehicle under OCGA § 40-6-394. And while proof of serious injury by vehicle also requires proof of an additional element, i.e., bodily harm, the DUI charge included no element that is not also contained in the crime of serious injury by vehicle. Accordingly, the Blockburger test is not met, and the subsequent indictment for serious injury by vehicle violates the federal Double Jeopardy Clause. See Cox v. State, 243 Ga.App. 668, 668-669, 533 S.E.2d 435 (2000) ( ); Williams, 214 Ga.App. at 702, 448 S.E.2d 700 ( ). See also Dixon, 509 U.S. at 700, 113 S.Ct. 2849; Harris, 433 U.S. at 682, 97 S.Ct. 2912; Harris v. State, 272 Ga.App. 366, 373(6), 612 S.E.2d 557 (2005) ( ); Himmel v. State, 246 Ga.App. 845, 851(3), 542 S.E.2d 557 (2000) ( ). Thus, Garrett's pleain bar "was a valid exercise of the federal Double Jeopardy Clause." Henderson v. State, 206 Ga.App. 642, 645, 426 S.E.2d 264 (1992) ( ).
We decide this case Henderson, 206 Ga.App. at 644, 426 S.E.2d 264. We note that by choosing this procedure, Garrett actually relied upon the minimum constitutional protections against double jeopardy and chose to forego the additional protections provided by Georgia statutory law. See State v. Estevez, 232 Ga. 316, 206 S.E.2d 475 (1974) (, )overruled on other grounds by Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006); McCannon v. State, 252 Ga. 515, 517, 315 S.E.2d 413 (1984) ( ); State v. Jackson, 290 Ga.App. 250, 250-251, 659 S.E.2d 679 (2008) (same). Accordingly, the trial court erred in applying Georgia statutory law in this case.3
Judgment reversed.
1 We note that under federal law, the State bears the burden of showing by a preponderance of the evidence that the two prosecutions involve separate crimes, once the defendant has met his initial burden of proving...
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