Nicely v. The State
Decision Date | 28 July 2010 |
Docket Number | No. A10A1426.,A10A1426. |
Citation | 699 S.E.2d 774,305 Ga.App. 387 |
Parties | NICELYv.The STATE. |
Court | Georgia Court of Appeals |
Nathanael A. Horsley, Dawsonville, for appellant.
N. Stanley Gunter, Dist. Atty., Cathy Cox-Brakefield, Asst. Dist. Atty., for appellee.
A White County jury found Willis Nicely guilty beyond a reasonable doubt of possession of cocaine, OCGA § 16-13-30(a). Following the denial of his motion for a new trial, Nicely appeals, contending, inter alia, that the superior court erred in denying his double jeopardy plea in bar to the cocaine possession prosecution. Specifically, Nicely contends that, once the State prosecuted him for a traffic violation that arose from the same incident and accepted his plea of nolo contendere to that charge, Georgia's procedural bar against double jeopardy barred any prosecution of the cocaine possession charge. For the reasons explained below, we reverse Nicely's cocaine possession conviction.
The record shows that, in the course of investigating possible illegal fishing on Sautee Creek on June 21, 2006, a law enforcement officer for the Georgia Department of Natural Resources arrested Nicely for possession of cocaine after finding one pipe containing cocaine residue in the car Nicely was driving and two pipes Nicely had used to smoke cocaine in his pocket. A White County sheriff's deputy assisted in the investigation and issued Nicely a traffic citation for driving with a suspended license. The traffic citation directed Nicely to appear in the probate court, which hears misdemeanors in White County.
A White County grand jury indicted Nicely for possession of cocaine on October 2, 2006. On October 10, 2006, Nicely appeared in the probate court and entered a plea of nolo contendere to the citation for driving with a suspended license. Later, Nicely filed a plea in bar, requesting that the cocaine possession charge be dismissed. The superior court denied the plea in bar, finding that there was no evidence that the assistant district attorney who represented the State at the hearing where Nicely entered a nolo contendere plea to the traffic citation personally knew of the cocaine possession charge at the time Nicely entered his plea to the traffic citation.
1. In addition to constitutional proscriptions of double jeopardy the extent to which an accused may be prosecuted, convicted, and punished for multiple offenses arising from the same criminal conduct is limited even more strictly by the Georgia Criminal Code.1 Under OCGA § 16-1-7(b), if “several crimes [1] arising from the same conduct are [2] known to the proper prosecuting officer at the time of commencing the prosecution and are [3] within the jurisdiction of a single court, they must be prosecuted in a single prosecution.” 2 “A second prosecution is barred under OCGA § 16-1-8(b)(1) if it is for crimes which should have been brought in the first prosecution under OCGA § 16-1-7(b).” 3 In order for this procedural aspect of double jeopardy to prohibit a prosecution, all three prongs must be satisfied.4 A defendant who asserts a plea in bar pursuant to OCGA §§ 16-1-7 and 16-1-8 bears the burden of affirmatively showing that the prosecuting attorney for the State who handled the first prosecution had actual knowledge of the facts supporting the charge allegedly subject to a plea in bar.5
OCGA §§ 16-1-7 and 16-1-8 require a trial court to bar a successive prosecution even when the State's failure to comply with that Code section is by default and not the result of the prosecutor's conscious decision to reserve some of the crimes for a later prosecution.6 Further, “[t]he law will not infer the waiver of an important right,” including the statutory right to be free of successive prosecutions, “unless waiver is clear and unmistakable.” 7 Thus, a defendant's failure, before pleading guilty to some offenses, to advise the prosecutor that he or she has other charges pending based on the same incident will not prevent the application of OCGA §§ 16-1-7 and 16-1-8.8 “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.” 9
In this case, it is undisputed that the first and third prongs of OCGA § 16-1-7(b) are satisfied: both the cocaine possession charge and the traffic citation arose from a single transaction; and, both charges were within the jurisdiction of, and could have been tried in, the superior court. The second prong requires identification of the proper prosecuting officer for each offense. In White County, which is part of the Enotah Judicial Circuit, the district attorney functions as the prosecuting attorney for the State in both superior and probate courts. As a result, the district attorney was the proper prosecuting officer for both the felony cocaine possession charge and the misdemeanor traffic citation against Nicely.10
By virtue of having achieved the return of an indictment on the cocaine possession charge on October 2, 2006, the district attorney, as a matter of law, had actual knowledge of that charge, which is the charge that Nicely claims is subject to a plea in bar under OCGA §§ 16-1-7 and 16-1-8, on the date of the first prosecution, that is, Nicely's nolo plea to the traffic citation in the probate court on October 10, 2006.11
Further, the district attorney's actual knowledge of the cocaine possession charge is imputed to the assistant district attorney who acted in the district attorney's place in representing the State in the prosecution of the traffic citation in the probate court.12 We conclude, therefore, that the several crimes arising out of Nicely's conduct on June 21, 2006, were as a matter of law known to the proper prosecuting officer at the time of the first prosecution, and the second prong of OCGA § 16-1-7 was satisfied. 13 It follows that the October 2007 trial as to the charge of cocaine possession was a successive prosecution for already-prosecuted conduct, and the superior court erred in rejecting Nicely's plea in bar pursuant to OCGA §§ 16-1-7 and 16-1-8.14
2. In light of our ruling in Division 1, Nicely's remaining claim of error is moot.
Judgment reversed.
1. McCannon v. State, 252 Ga. 515, 516-517, 315 S.E.2d 413 (1984); see id. at 519, 315 S.E.2d 413 ( )(punctuation omitted); Asberry v. State, 221 Ga.App. 809, 810, 472 S.E.2d 562 (1996) () (citation and punctuation omitted).
2. See McCannon v. State, 252 Ga. at 516, n. 1, 315 S.E.2d 413 ( ) (punctuation omitted); Weaver v. State, 224 Ga.App. 243, 480 S.E.2d 286 (1997) ( ).
3. (Punctuation and footnote omitted.) Etienne v. State, 298 Ga.App. 149, 150-151, 679 S.E.2d 375 (2009).
4. Wilson v. State, 229 Ga.App. 455, 456, 494 S.E.2d 267 (1997); see McCannon v. State, 252 Ga. at 517, n. 2, 315 S.E.2d 413 ( ).
5. See Baker v. State, 257 Ga. 567, 568-569, 361 S.E.2d 808 (1987) ( )(citation, punctuation and emphasis omitted); Barlowe v. State, 286 Ga.App. 133, 134, 648 S.E.2d 471 (2007) ( ); White v. State, 284 Ga.App. 805, 807, 644 S.E.2d 903 (2007) () (citation omitted) (physical precedent only); Hill v. State, 234 Ga.App. 173, 175(1), 507 S.E.2d 3 (1998) () (citations and punctuation omitted); Billups v. State, 228 Ga.App. 804, 807-808(1), 493 S.E.2d 8 (1997) ( ); Zater v. State, 197 Ga.App. 648, 649, 399 S.E.2d 222 (1990) ( ); Harrell v. State, 196 Ga.App. 101, 103(2), 395 S.E.2d 598 (1990) () (citation omitted); Sanders v. State, 188 Ga.App. 774, 374 S.E.2d 542 (1988) ( )...
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...should have been brought in the first prosecution under OCGA § 16-1-7 (b)." (Footnote and punctuation omitted.) Nicely v. State , 305 Ga. App. 387, 388 (1), 699 S.E.2d 774 (2010). Thus, when considered together, OCGA §§ 16-1-7 (b) and 16-1-8 (b) prevent successive prosecutions for crimes: (......
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...if it is for crimes which should have been brought in the first prosecution under OCGA § 16–1–7(b)." Nicely v. State , 305 Ga.App. 387, 388 (1), 699 S.E.2d 774 (2010). The State has not contested that both prosecutions were brought within the jurisdiction of a single court. It does, however......
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Maxwell v. State
...which should have been brought in the first prosecution under OCGA § 16-1-7 (b)." (Footnote and punctuation omitted.) Nicely v. State , 305 Ga. App. 387, 388 (1), 699 S.E.2d 774 (2010). Thus, when considered together, OCGA §§ 16-1-7 (b) and 16-1-8 (b) prevent successive prosecutions for cri......
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