Patterson v. State

• Decision Date: 04 February 1982
• Docket Number: No. 37895,37895
• Citation: 287 S.E.2d 7,248 Ga. 875
• Court: Georgia Supreme Court
• Parties: PATTERSON v. The STATE.

Page 7

287 S.E.2d 7

248 Ga. 875

PATTERSON v. The STATE.

No. 37895.

Supreme Court of Georgia.

Feb. 4, 1982.

Daniel J. Craig, Harrison, Jolles & Craig, APC, Augusta, for Allen Clarkson Patterson.

Sam B. Sibley, Jr., Dist. Atty., Augusta, for the State.

SMITH, Justice.

Appellant was convicted of two counts of armed robbery. His convictions, however, were reversed in Patterson v. State, 157 Ga.App. 233, 276 S.E.2d 900 (1981), because the state "failed to fulfill its burden of proof with regard to venue ..." Id. at 234, 276 S.E.2d 900. On remand, appellant timely filed a plea of double jeopardy, which was denied by the trial court. The trial court certified the case for immediate review, and appellant filed an application for interlocutory appeal in this court. We granted the application.

This court, however, does not have jurisdiction over appellant's double jeopardy claim. "[W]here only an application of plain provisions of the Constitution is involved, the Court of Appeals and not the Supreme Court has jurisdiction." Robinson v. State, 209 Ga. 48, 49, 70 S.E.2d 514 (1952). Furthermore, appellant does not stand accused of a capital felony. See Marchman v. State, 232 Ga. 48, 205 S.E.2d 266 (1974).

Nevertheless, the instant case presents a basic and heretofore unanswered question--whether the denial of a timely filed plea of double jeopardy is appealable without resort to the interlocutory appeal procedures of Code Ann. § 6-701(a)(2). We consider it appropriate to settle this issue now. ¹

In Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), the U. S. Supreme Court held that the denial of a plea of double jeopardy is an appealable order under 28 U.S.C. § 1291 "which grants the federal court of appeals jurisdiction to review 'all final decisions of the district courts,' both civil and criminal." Id. at 657, 97 S.Ct. at 2039. The court noted that "[t]he pretrial denial of a motion to dismiss an indictment is obviously not 'final' in the sense that it terminates the criminal proceedings in the district court." Id. However, the court concluded that such a "collateral order" falls within the "small class of cases" that are immediately appealable despite the absence of traditional finality. Id. at 659, 97 S.Ct. at 2040.

First, the court reasoned, "there can be no doubt that such orders constitute a complete, formal, and, in the trial court, final rejection of a criminal defendant's double jeopardy claim. There are simply no further steps that can be taken in the [trial court] to avoid the trial the defendant maintains is barred by the Fifth Amendment's guarantee," Id. Hence, there is a "fully consummated decision." Id. Furthermore, "the very nature of a double jeopardy claim is such that it is collateral to, and separable from, the principal issue of the accused's impending criminal trial, i.e., whether or not the accused is guilty of the offense charged." Id.

Finally, and perhaps of greatest importance, "the rights conferred on a criminal accused by the Double Jeopardy clause would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence. To be sure, the Double Jeopardy Clause protects an individual against being twice convicted for the same crime, and that aspect of the right can be fully vindicated on an appeal following final judgment .... However [it] has long [been] recognized that the Double Jeopardy Clause protects an individual against more than being subjected to double punishments. It is a guarantee against being twice put to trial for the same offense ... Obviously, [this aspect] of the guarantee's protections would be lost if the accused were forced to 'run the gauntlet' a second time before an appeal could be taken; even if the accused is acquitted, or, if convicted, has his conviction ultimately reversed on double jeopardy grounds, he has still been forced to endure a trial that the Double Jeopardy Clause was designed to prohibit ... [If] a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs." Id. at 660-662, 97 S.Ct. at 2040-2041.

Code Ann. § 6-701(a) provides: "Appeals may be taken to the Supreme Court and Court of Appeals from judgments and rulings of the superior courts, the constitutional city courts, and such other courts or tribunals from which writs of error are authorized...