McClure v. State

• Decision Date: 29 May 1986
• Docket Number: No. 72450,72450
• Citation: 345 S.E.2d 922,179 Ga.App. 245
• Parties: McCLURE v. The STATE.
• Court: Georgia Court of Appeals

Page 922

345 S.E.2d 922

179 Ga.App. 245

McCLURE v. The STATE.

No. 72450.

Court of Appeals of Georgia.

May 29, 1986.

Ronald C. Goulart, Fort Oglethorpe, for appellant.

David L. Lomenick, Jr., Dist. Atty., Roland Enloe, Asst. Dist. Atty., for appellee.

BANKE, Chief Judge.

The appellant filed this appeal from his convictions in the Superior Court of Catoosa County of the offenses of kidnapping and aggravated assault. With respect to the latter offense, the indictment charged that the appellant had assaulted the victim with a knife "with intent to rape."

The evidence showed that the appellant and two accomplices abducted the victim at knifepoint from a welcome center off Interstate 75 in Catoosa County and then took her to a location in Whitfield County, where they raped and robbed her. It appears that, prior to the commencement of the trial, the appellant had pled guilty in Whitfield County to charges of rape and armed robbery arising from the same series of events. Following the close of the evidence in the present case, the appellant unsuccessfully sought the dismissal of the aggravated assault charge on the ground that it was based on the same conduct as the Whitfield County rape charge to which he had pled guilty, contending that to convict him of both would subject him to double jeopardy. The trial court's rejection of this contention forms the sole basis for the present appeal. Held:

1. The state's argument that the appellant waived his claim of former jeopardy by failing to assert it in writing prior to trial is without merit. The prohibition against double jeopardy has two separate aspects. The first, embodied by OCGA § 16-1-8, amounts to a prohibition against successive prosecutions for the same offense. This has been referred to as the procedural bar against double jeopardy. The second, embodied by OCGA § 16-1-7, amounts to a prohibition against successive punishments for the same offense. This has been referred to as the substantive bar against double jeopardy. See Stephens v. Hopper, 241 Ga. 596, 598-599, 247 S.E.2d 92 (1978).

It may be assumed for purposes of argument that the procedural bar against double jeopardy can, at least in some circumstances, be waived by failure to assert it in writing prior to trial. See Hall v. State, 103 Ga. 403, 29 S.E. 915 (1897); Hooks v. State, 138 Ga.App. 539 (3), 226 S.E.2d 765 (1976). However, the applicability of the substantive bar may not even become apparent to an accused or his counsel until after the state has presented its case, for until then it may not be apparent that the state is relying on the same evidence to prove more than one offense. Although the two concepts seem to have been confused on occasion (see, e.g., Holmes v. State, 120 Ga.App. 281, 170 S.E.2d 312 (1969); Key v. State, 84 Ga.App. 599(1), 66 S.E.2d 773 (1951)), more recent decisions make it clear that the failure to file a written plea of former jeopardy prior to trial will not defeat an accused's right to be free of multiple convictions for the criminal act. See Clark v. State, 144 Ga.App. 69, 240 S.E.2d 270 (1977) (cert. den.) See also Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974) (where habeas corpus relief was granted to a North Carolina defendant who had pled guilty to a felony assault charge after asserting his right to a trial de novo following his conviction in a lower court of a misdemeanor charge based on the same conduct). We consequently hold that no waiver resulted from the appellant's failure to assert...