Harrell v. State, A90A0855

• Decision Date: 12 June 1990
• Docket Number: No. A90A0855,A90A0855
• Parties: HARRELL v. The STATE.
• Court: Georgia Court of Appeals

Page 598

395 S.E.2d 598

196 Ga.App. 101

HARRELL v. The STATE.

No. A90A0855.

Court of Appeals of Georgia.

June 12, 1990.

Rehearing Denied June 22, 1990.

Certiorari Denied Sept. 4, 1990.

Virgil L. Brown & Associates, Virgil L. Brown, Zebulon, Bentley C. Adams III, Thomaston, for appellant.

Tommy K. Floyd, Dist. Atty., Marie R. Banks, Asst. Dist. Atty., for appellee.

SOGNIER, Judge.

Charles A. Harrell appeals from the trial court's denial of his plea in bar of prosecution in the Superior Court of Lamar County on charges of obstructing an officer, interfering with government property, carrying a concealed weapon, and possession of a firearm by a convicted felon, made on the ground that these prosecutions were in violation of OCGA § 16-1-7(b) because he previously had been tried and convicted in Milner Municipal Court on a DUI charge which arose from the same conduct.

At the hearing on the DUI charge in municipal court, Milner Police Chief Jake Sutton testified that at approximately 1:20 a.m. on September 24, 1988, he observed a vehicle parked on the side of a dirt road. Because the vehicle appeared to be parked in what he regarded as a dangerous and suspicious place, Sutton decided to investigate, and upon further investigation the driver, appellant, produced his license and proof of insurance and answered Sutton's questions. Sutton testified he then asked appellant to submit to a portable Alco-check test because "[a]s [appellant] spoke, he emitted a strong odor of alcohol," and the test results were high enough to cause Sutton to call for help, arrest appellant, and advise him of his implied consent rights, whereupon appellant agreed to take a breath test at the Lamar County Sheriff's office. Lamar County Sheriff's Deputy Eric Harris arrived shortly thereafter, and the two officers handcuffed appellant's hands behind his back and placed him in the rear of Harris' vehicle for transport, with Sutton following in his vehicle. Sutton testified that on the way to the Sheriff's office, Harris stopped in a convenience store parking lot, and when Sutton pulled up behind him, Harris emerged from the patrol car, as did appellant, who "stepped out in a swinging motion in an attempt to hit Deputy Harris." Appellant's counsel then elicited from Sutton the information that Harris told him appellant had "either threatened to kill [Harris] or threatened him with a gun." An intoximeter test at the Sheriff's office registered an alcohol concentration of .19 grams, and appellant was issued a citation charging him with DUI. Warrants were taken out by Harris and Sutton that day for obstructing an officer, carrying a concealed weapon, and carrying a pistol without a license.

Appellant appeared in the Milner Municipal Court on October 12, 1988, and was tried and convicted of the DUI offense. On December 12, 1988, the Lamar County Grand Jury indicted appellant for the offenses of obstructing an officer, interference with government property, carrying a concealed weapon, and possession of a firearm by a convicted felon. Appellant then filed the plea in bar which is the subject of this appeal, alleging the superior court prosecution was barred by the former jeopardy provisions of the Georgia and U.S. Constitutions and by OCGA § 16-1-7(b). Appellant later amended his plea to request a trial by jury on the plea. The trial court denied both appellant's plea and his request to have the plea heard by a jury.

1. Appellant alleges the trial court erred by failing to afford him a trial by jury on his plea in bar, as required by McWilliams v. State, 110 Ga. 290(2), 34 S.E. 1016 (1900) and Daniels v. State, 78 Ga. 98, 102-103(2) (6 A.S.R. 238) (1886). However, unlike the situation in those cases, the facts here are not in dispute, as Sutton's testimony at the DUI trial was not rebutted or...