Smith v. State, 69003

• Decision Date: 08 March 1985
• Docket Number: No. 69003,69003
• Parties: SMITH v. The STATE.
• Court: Georgia Court of Appeals

Page 839

327 S.E.2d 839

173 Ga.App. 728

SMITH v. The STATE.

No. 69003.

Court of Appeals of Georgia.

March 8, 1985.

Reuben M. Word, Douglasville, for appellant.

Frank C. Winn, Dist. Atty., J. David McDade, Asst. Dist. Atty., for appellee.

BIRDSONG, Presiding Judge.

The appellant Christopher David Smith, now fourteen years old, appeals the superior court's denial of his plea in bar to his trial for the capital offense of armed robbery. (He was tried and found guilty of the offense.) The plea is grounded in the contention that double jeopardy attached when charges against Smith for motor vehicle theft were heard in juvenile court four days before the superior court trial.

The crimes with which appellant was charged occurred March 3, 1984. In the early morning hours, appellant escaped from hospital detention in Douglas County and, at approximately 7:00 a.m., stole a pick-up truck. About an hour later, appellant went into a country store and, using a gun he had found in the truck, shot the storekeeper in the back. Unable to open the cash register himself, appellant forced the wounded storekeeper to open it, and was in the process of taking money from it when a customer entered. The customer quickly withdrew from the store; he and his companions saw the appellant run outside and copied the truck's tag number as appellant drove off. The stolen truck was found, and appellant was arrested, by an officer who answered the armed robbery call.

Two days later, on Monday, March 5, felony warrants were issued charging appellant with armed robbery, aggravated assault and motor vehicle theft. At a committal hearing on Tuesday, appellant and counsel were advised that the state would seek an indictment for armed robbery, that being the only offense charged of which the superior court had concurrent jurisdiction with the juvenile court (see OCGA § 15-11-39). The superior court judge accepted jurisdiction of the armed robbery offense. The following day, March 6, appellant was taken before the juvenile court and charged with motor vehicle theft. On March 12, appellant was indicted for armed robbery. On March 15, the juvenile court called the case and continued it until March 29, and again at appellant's request until April 12, when the motor vehicle theft charge was heard and found true, although an adjudication of whether appellant was "delinquent" was reserved until a later date. At this juvenile hearing, the court, over objection, heard evidence of the entire sequence of events, including the armed robbery. The plea in bar was filed April 13. The armed robbery trial was called in superior court on April 16 and the double jeopardy plea denied. Held:

1. The state argues in effect that this case has exposed a serious defect in the Georgia law which forces the state to proceed in two separate actions, where the superior court first acquired jurisdiction of one offense and left the other offenses to the juvenile court, which juvenile proceedings were under strict time limitations which only the appellant could waive or control, if we hold that the juvenile hearing threw the appellant into jeopardy and foreclosed the superior court from exercising its jurisdiction to try the appellant for the capital offense. Obviously, those circumstances present a problem wherever two courts with concurrent jurisdiction seek to prosecute for the same conduct. See, e.g., Brock v. State, 146 Ga.App. 78, 80-81, 245 S.E.2d 442; and see In re T.E.D., 169 Ga.App. 401, 312 S.E.2d 864. But in this case, the offense of armed robbery tried by the superior court and the offense of theft of motor vehicle heard by juvenile court, clearly did not arise from the "same conduct" (OCGA § 16-1-8(b)(1)) and, moreover, each prosecution required proof of facts not required for the other. Id. The superior court was careful to assume jurisdiction over nothing but the armed robbery of the storekeeper; the juvenile court was equally careful in assuming jurisdiction of the motor vehicle theft and eschewing jurisdiction of the aggravated assault of the storekeeper. The prosecutions were not "successive prosecutions" barred by OCGA § 16-1-8, and it follows that they were not "multiple prosecutions" barred by § 16-1-7. See Brock v. State, supra; see also State v. Estevez, 232 Ga. 316, 318, 206 S.E.2d 475.

This case is distinctly different from McCrary v. State, 171 Ga.App. 585, 320 S.E.2d 567, affirmed 253 Ga. 747, 325 S.E.2d 151 (1985) in which the entire series of offenses were part of one continuing and related transaction, all involving the same conduct of that appellant in attempting to elude the police. There is nothing connecting the motor vehicle theft and the armed robbery in this case, except the immaterial fact that appellant arrived at and left the scene of the armed robbery in a stolen vehicle. Distinctly different criminal intent is involved in each offense, with any distinctly different conduct involving different victims and different witnesses. Proof of each did not require proof of the other. Brock v. State, supra. We reject any contention that when one steals a vehicle, every act however unrelated and independent which he commits while in possession of that vehicle is, by virtue of that single fact, of the same conduct and same continuing transaction as the theft of the vehicle. The offense of motor vehicle theft had already been completed when the offense of armed robbery was committed. Breland v. State, 135 Ga.App. 478, 479, 218 S.E.2d 153.

The fact that the juvenile court did not have jurisdiction of the armed robbery did not preclude it from receiving evidence of it in connection with the motor vehicle theft and the series of transactions which led to appellant's capture. See Favors v. State, 149 Ga.App. 563, 254 S.E.2d 886.

2. The appellant filed his plea in bar on April 13 and the superior court armed robbery trial was called April 16, whereupon appellant's plea was denied. This notice of appeal was filed that day. In proceeding to trial on April 18, the trial court ruled that "the appeal has not been filed sufficiently in advance of trial so as not to constitute a delaying tactic." (Emphasis supplied.) We think it obvious that by this the trial court intended to track the language in Patterson v. State, 248 Ga. 875, 877, 287 S.E.2d 7, that an order denying a plea of double jeopardy is directly appealable (which appeal therefore acts as automatic supersedeas) under OCGA § 5-6-34, "where the plea was filed sufficiently in advance of trial so as not to constitute a delaying device." (Emphasis supplied.) Interpreting the ruling to refer to "appeal" instead of "plea" makes no sense. In any case, we find no harm, either in the trial court's stated reason for proceeding to trial without supersedeas or in the apparent ruling that the "plea" was a delaying device, since we have heard the plea on its merits and find no merit in it. Murff v. State, 165 Ga.App. 808, 811-812, 302 S.E.2d 697, reversed on other grounds, Murff v. State, 251 Ga. 478, 306 S.E.2d 267.

Judgment affirmed.

CARLEY, J., concurs.

BEASLEY, J., concurs specially.

BEASLEY, Judge, concurring specially.

In order to provide full protection against double jeopardy, the law provides that a defendant may file a direct appeal from a denial of such a plea in bar "where the plea was filed sufficiently in advance of trial so as not to constitute a delaying device." Patterson v. State, 248 Ga. 875, 877, 287 S.E.2d 7 (1982). It is in this sense regarded as a final judgment falling within the scope of OCGA § 5-6-34(a)(1). See also Rogers v. State, 166 Ga.App. 299, 304 S.E.2d 108 (1983); McCannon v. State, 168 Ga.App. 471, 309 S.E.2d 636 (1983); cf. Williford v. Davis, 181 Ga. 411, 182 S.E. 511 (1935).

In Patterson v. State, supra, the Georgia Supreme Court held that appeals from orders denying pleas of double jeopardy are directly appealable under Code Ann. § 6-701(a) (now OCGA § 5-6-34(a)(1)) which provides: "(a) Appeals may be taken ... from ... (1) All final judgments, that is to say, where the case is no longer pending in the court below, except as provided in Code Section 5-6-35; " ¹ The law further provides that the notice of appeal serves as a supersedeas in criminal cases "where a sentence of death has been imposed or where the defendant is admitted to bail." OCGA § 5-6-45. Although neither instance is present here, the rationale expressed in Patterson for allowing direct appeal in double jeopardy denials supplies the necessity for the notice of appeal to act as supersedeas in such cases also. Otherwise, proceeding with the trial would impose and constitute a significant portion of the very harm which defendant's plea, if valid, is designed to prevent. Thus as in civil cases, the notice of appeal would supersede the judgment appealed but would not deprive the trial court of jurisdiction as to other matters in the same case not affecting the judgment on appeal. Cohran v. Carlin, 249 Ga. 510, 512, 291 S.E.2d 538 (1982). See also Walker v. Walker, 239 Ga. 175, 236 S.E.2d 263 (1977): "a notice of appeal to a final judgment deprives the trial court of jurisdiction to take further proceedings towards the enforcement of the judgment superseded." Obviously, trying defendant would avoid the double jeopardy bar, if there was one.

The notice of appeal was filed as soon as the court denied the plea in bar and on the same day, i.e., April 16, 1984.

Defendant proceeded with a direct appeal. The State argues that defendant had no right to appeal because the trial court found that the plea of double jeopardy was not filed sufficiently in advance of trial so as not to constitute a delaying tactic. The court, however, made no such finding. What it stated in its April 18 order, after noting that the defendant had filed a notice of appeal, was that "the appeal has not been filed sufficiently in advance of trial so as not to constitute a delaying tactic." (Emphasis supplied.) Thus, it does...