Palmer v. State, A17A0428

• Decision Date: 18 May 2017
• Docket Number: A17A0429,A17A0428
• Parties: PALMER v. The STATE. Ellerbee v. The State.
• Court: Georgia Court of Appeals

341 Ga.App. 433

801 S.E.2d 300

PALMER

v.The STATE.

Ellerbee

v.The State.

A17A0428

A17A0429

Court of Appeals of Georgia.

May 18, 2017

Gilbert J. Murrah, Bainbridge, for Palmer.

Mark Douglas Brimberry, Albany, for Ellerbee.

Joseph Kenneth Mulholland, Moruf Olalere Oseni, for Appellee.

Dillard, Presiding Judge.

Royce Palmer and Brandon Ellerbee appeal from the trial court's denial of their pleas in bar. Following that denial, both appellants were convicted, in a stipulated bench trial in Calhoun County, of theft by taking and criminal trespass and sentenced under the First Offender Act. Palmer and Ellerbee argue that the trial court erred in denying their pleas in bar when their prosecutions in Calhoun County were barred by double jeopardy because both had entered into a pretrial diversion program in Irwin County with regard to the same criminal conduct at issue in Calhoun County. For the reasons set forth infra , we affirm Palmer and Ellerbee's convictions.

The 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."¹ But when the evidence is uncontroverted and witness credibility is not an issue, "our review of the trial court's application of the law to the undisputed facts is de novo."² Here, as stipulated to or testified to by both Palmer and Ellerbee at their Calhoun County plea-in-bar hearing and the subsequent bench trial, the record shows that on October 17, 2013, the appellants went to a farm in Calhoun County for the purpose of committing a theft. Thereafter, Palmer and Ellerbee took from the farm a trailer loaded with pecans, the combined value of the items being $28,240.00. The men then drove the trailer to Irwin County, where they unloaded the pecans for sale to a pecan company and then disposed of the trailer by pushing it into the Alapaha River. They were subsequently arrested in Irwin County and charged with two counts of theft by receiving stolen property.³ The pair was later arrested in Calhoun County and charged with theft by taking and criminal trespass.⁴

On February 4, 2013, a grand jury in Calhoun County returned an indictment against Palmer and Ellerbee on counts of theft by taking and criminal trespass. Twenty-four days later, on February 28, 2013, Palmer and Ellerbee entered into a pretrial intervention program in Irwin County concerning their arrests for theft by receiving. It is undisputed that no indictment or accusation was ever filed in Irwin County, but the terms of the pretrial intervention agreement required two years of compliance with program and payment of a $1,000 fine. Upon successful completion of the Irwin County program, the pending warrants against Ellerbee and Palmer would be dismissed. Both Ellerbee and Palmer paid the fine and began reporting to Irwin County authorities in compliance with the terms of the agreement.

Meanwhile, as to the indicted charges in Calhoun County, in early March 2013, appellants waived arraignment. And on December 2, 2013, they waived their right to a jury trial. Finally, on March 3, 2014, Ellerbee and Palmer each filed a plea in bar as to the charges in Calhoun County. On that same day, they appeared in Calhoun County Superior Court for a hearing on their pleas in bar and, following the court's denial of same, a consolidated, stipulated bench trial on the charges for theft by taking and criminal trespass.

When the Calhoun County hearing occurred, Ellerbee and Palmer had already paid the $1,000 fine and successfully completed one year of the two-year pretrial intervention program in Irwin County. Thus, they argued that their prosecution in Calhoun County on charges stemming from the same criminal conduct was barred by double jeopardy. But the trial court disagreed, and went on to convict both men of the Calhoun County charges following the stipulated bench trial. This consolidated appeal by Ellerbee and Palmer follows, in which both challenge the denial of their pleas in bar.

We begin our analysis by noting that the prohibition against double jeopardy in both the United States Constitution⁵ and the Georgia Constitution⁶ protects our citizens from, inter alia , being prosecuted a second time for the same offense after an acquittal or conviction.⁷ As our Supreme Court has previously explained, the bar to multiple convictions "usually arises [when] several crimes arising out of one criminal transaction are tried at the same time" and, in such cases, "the rule does not operate until after the verdicts."⁸ But the bar to multiple convictions may "have a procedural aspect [when] the crimes arising out of the same criminal transaction are tried separately."⁹ And when crimes are tried separately, "it is generally held that if multiple convictions arising out of a single prosecution are barred they will likewise be barred from successive prosecution."¹⁰

Thus, when crimes are to be prosecuted separately, "the more serious known crimes should be prosecuted first to avoid the conviction of a lesser crime barring a subsequent prosecution for a more serious crime."¹¹

In this regard, several Georgia statutory provisions, including OCGA § 16–1–7 and OCGA § 16–1–8, "provide limitations on multiple prosecutions, convictions, and punishments for the same criminal conduct."¹² Accordingly, because Georgia law "expands the proscription of double jeopardy beyond that provided for in the United States and Georgia Constitutions," we look to these statutory provisions to resolve issues of double jeopardy.¹³ Finally, we note that when a "defendant in a single act violates the ‘peace and dignity’ of two sovereigns by breaking the laws of each, he has committed two distinct ‘offences[,]’ "¹⁴ and he may be prosecuted by each sovereign "without violating the constitutional protection against double jeopardy."¹⁵ That said, the various counties within Georgia are not separate sovereigns.¹⁶

Turning to the statutes relevant to this appeal, we are mindful that in considering the meaning of a statute, our charge as an appellate court is to "presume that the General Assembly meant what it said and said what it meant."¹⁷ And toward that end, we must afford the statutory text its plain and ordinary meaning,¹⁸ consider the text contextually,¹⁹ read the text "in its most natural and reasonable way, as an ordinary speaker of the English language would,"²⁰ and seek to "avoid a construction that makes some language mere surplusage."²¹ In summary, when the language of a statute is "plain and susceptible of only one natural and reasonable construction, courts must construe the statute accordingly."²²

Bearing these principles of statutory construction in mind, OCGA § 16–1–7 provides, in relevant part, that

[w]hen the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if[ ] ... [o]ne crime is included in the other; or ... [t]he crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.²³

And OCGA § 16–1–8 provides, in relevant part, that

[a] prosecution is barred if the accused was formerly prosecuted for the same crime based upon the same material facts, if such former prosecution [ ] ... [r]esulted in either a conviction or an acquittal; or ... [w]as terminated improperly after the jury was impaneled and sworn or, in a trial before a court without a jury, after the first witness was

sworn but before findings were rendered by the trier of facts or after a plea of guilty was accepted by the court.²⁴

"Prosecution" is defined elsewhere in the Code as "all legal proceedings by which a person's liability for a crime is determined, commencing with the return of the indictment or the filing of the accusation, and including the final disposition of the case upon appeal."²⁵

After having considered these statutory provisions, the trial court denied Ellerbee and Palmer's pleas in bar because (as the State again argues on appeal) there was no prosecution in Irwin County. Indeed, it is undisputed that there had been neither an indictment returned nor an accusation filed there for either appellant.

We agree with the trial court that, after applying the undisputed facts in this case to the plain language of the relevant statutes (quoted supra ), it is clear that Ellerbee and Palmer's prosecution in Calhoun County was not barred by their decision to enter into a pretrial intervention program (a type of program expressly authorized by our General Assembly²⁶ ) in lieu of prosecution in Irwin County (a purpose which is recognized by the very statute that authorizes such programs²⁷ ). And while there might arguably be some tension between the incentive to enter into and complete a pretrial diversion program (which the appellants had not yet done at the time of their pleas in bar) and the principles that are applicable to double jeopardy,²⁸ we need not address or attempt to resolve any such tension at this time. Once again, under the relevant facts and law applicable to this case, because Palmer and Ellerbee were not actually prosecuted in Irwin County, jeopardy did not attach.²⁹

Accordingly, for all these reasons, we affirm the trial court's denial of Ellerbee and Palmer's pleas in bar.

Judgments affirmed.

Self, J., concurs. Ray, J., concurs in judgment only.

1 Johns v. State, 319 Ga.App. 718, 719, 738 S.E.2d 304 (2013) (punctuation omitted); accord Nicely v. State, 305 Ga.App. 387, 389 (1), 699 S.E.2d 774 (2010).

2 State v. Hill, 333 Ga.App. 785, 785, 777 S.E.2d 265 (2015) (punctuation omitted).

3 See OCGA § 16–8–7 (a) ("A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with...