State v. Barrett, s. A94A1910

• Decision Date: 17 November 1994
• Docket Number: A94A1911,Nos. A94A1910,s. A94A1910
• Citation: 215 Ga.App. 401,451 S.E.2d 82
• Court: Georgia Court of Appeals
• Parties: The STATE v. BARRETT (two cases).

Page 82

451 S.E.2d 82

215 Ga.App. 401

The STATE v. BARRETT (two cases).

Nos. A94A1910, A94A1911.

Court of Appeals of Georgia.

Nov. 17, 1994.

Reconsideration Denied Dec. 2, 1994.

Michael H. Crawford, Dist. Atty., for appellant.

James N. Butterworth, Cornelia, for appellee.

BEASLEY, Presiding Judge.

In May 1991, Barrett, then Mayor of the City of Baldwin, was charged in indictment 91-CR76 with one count of interference with property of a municipality, OCGA § 16-7-24(a), and two counts of misdemeanor theft by taking, OCGA § 16-8-2. He was also charged in indictment 91-CR77 with one count of felony theft by taking, OCGA § 16-8-2, one count of first degree forgery, OCGA § 16-9-1, and one count of theft by deception, OCGA § 16-8-3.

Barrett and the State negotiated a plea in return for first offender treatment on the felony theft by taking and forgery counts of 91-CR77 and orders of nolle prosequi on all other counts. The court accepted the plea and sentenced Barrett to five years probation as a first offender. See OCGA § 42-8-60 et seq. As part of the bargain, Barrett signed an agreement with the district attorney which provided that "the defendant, Tommy Lee Barrett, hereby agrees that he will resign as Mayor of Baldwin, and he will never again seek, run for, nor accept election or appointment to any public office. Should [he] ever default in this agreement, the State shall have the right to prosecute the defendant and the defendant shall be subject to prosecution in the Courts of this State or the United States, on any of the above cases, counts or alleged crimes regardless of any statute of limitations, right to speedy trial, or any other bar to prosecution." The court's order specified as a condition of probation that Barrett would not "seek, run for, nor accept election or appointment to any public office." He did resign as mayor.

Barrett was granted discharge from probation on December 26, 1992, well before the designated five years had passed. In December 1993 he was again elected Mayor of Baldwin. On January 10, 1994 he was reindicted on all charges, with indictment 94-CR1S corresponding to original indictment 91-CR76, and indictment 94-CR2W corresponding to original indictment 91-CR77.

Barrett moved to dismiss the first two counts of indictment 94-CR2W on the basis of double jeopardy and the First Offender Act, OCGA § 42-8-60 et seq., and moved to dismiss all counts on both indictments on the grounds that he had successfully completed his sentence on the charges and that the reindictments were violative of due process and contrary to his plea agreement. After a hearing, the court dismissed all charges on indictment 94-CR1S and the first three charges of indictment 94-CR2W (i.e., the two counts of theft by taking and the count of first degree forgery). ¹ The court determined that the plea agreement's prohibition on Barrett's seeking public office did not survive the discharge of probation and that the two charges on 94-CR2W to which Barrett had originally pled guilty were barred by double jeopardy. ² The court analyzed the remaining charges on both indictments under the statute of limitation and all were dismissed except for the theft by deception count on 94-CR2W.

In Court of Appeals Case No. A94A1910, the State appeals from the dismissal of the charges in indictment number 94-CR1S. In Case No. A94A1911, the State appeals from the dismissal of the charges in indictment number 94-CR2W. Barrett does not challenge by cross-appeal the court's refusal to dismiss the fourth count of indictment 94-CR2W.

In attempting to enforce the provisions of the plea agreement, the State cannot rely on the court-imposed condition of probation that Barrett not seek office; this was a condition of probation and ceased when probation ended. See Whitehead v. State, 207 Ga.App. 891, 429 S.E.2d 536 (1993). The question is the effect of the "Agreement" between the State and the defendant on the renewed charges.

The issues in these cases are distinguished not by their procedural separation, but by whether the separate charges were dismissed because of double jeopardy or the statute of limitation. The two appeals are combined and the two issues are addressed separately.

1. On the first two counts of 94-CR2W, Barrett had already pled guilty, been sentenced, and completed sentence for the crimes. The court properly dismissed these charges on the grounds of double jeopardy notwithstanding any outside agreement to the contrary. See Ga. Const.1983, Art. I, Sec. I, Par. XVIII; OCGA § 16-1-7(a). The State seeks to impose punishment not for the original crimes but for the later lawful act of seeking and obtaining public office. Reindictment on charges for which Barrett has completed sentence is merely a vehicle to fulfill that end. A person obviously cannot be twice convicted and punished for certain crimes because he did some other subsequent act. Barrett's agreement to submit to such prosecution by waiving any bar to prosecution, regardless of the failure to mention double jeopardy, is ineffectual in regard to double jeopardy. The court could not impose additional punishment for these two crimes as punishment for seeking public office. Nor is it even reasonable to construe the agreement to mean that the parties agreed for Barrett to be prosecuted and punished twice for the same crime if he committed a different and lawful act.

The State's attempt to extract additional punishment for these crimes would invade the court's authority in sentencing. See OCGA § 17-10-1. It had already once determined the appropriate punishment, which had been carried out. It was not error to dismiss the two charges upon which Barrett had already served sentence.

2. The court relied upon the statutes of limitation in dismissing all counts of indictment 94-CR1S and Count 3 of 94-CR2W. After an order of nolle prosequi, a second indictment can properly be returned within the applicable statute of limitation. See State v. Davis, 201 Ga.App. 533, 411 S.E.2d 555 (1991). " 'The period of limitation runs from the commission of the offense to the date of the indictment.' [Cit.]" Wiggins v. State, 208 Ga.App. 757, 759(2), 432 S.E.2d 113 (1993). Both indictments at issue were returned on January 10, 1994. The period of limitation for the felonies in the indictments was four years, OCGA § 17-3-1(c), and it was two years for the misdemeanors, OCGA § 17-3-1(d).

The first count in indictment 94-CR1S was felony interference with property of a municipality, alleged to have occurred on June 30, 1989, more than four years before the January 10, 1994 indictment. The second count was misdemeanor theft by taking, alleged to have occurred March 14, 1990, more than two years before the indictment. The third and final count was also misdemeanor theft by taking, alleged to have occurred between April 12, 1990 and May 14, 1990, also more than two years before indictment.

On indictment 94-CR2W the first two counts were felony theft by taking and first degree forgery, the charges to which Barrett pled guilty and served sentence. The third count was felony theft by taking, alleged to have occurred on June 19, 1989, more than four years before the indictment. The fourth and final count was felony theft by deception, alleged to have occurred on March 23, 1990, within four years of the indictment; this was the only count the court did not dismiss.

The State concedes that, were it not for the plea agreement, the court was correct in concluding that the respective periods of limitation had run. It contends, however, that the plea agreement continued in effect after the discharge of probation and included an express waiver of the statutes of limitation or any other bar to the prosecution. Barrett contends that the statutes of limitation cannot be waived; the State asserts that they can and were.

OCGA § 17-3-1(d) provides that "[p]rosecution for misdemeanors must be commenced within two years after the commission of the crime." OCGA § 17-3-1(c), which provides the four-year limitation period for the felonies at issue here, is similarly worded and equally silent on waiver. Barrett does cite decisions from other jurisdictions for the proposition that the criminal statute of limitation is jurisdictional and controls the court's power to proceed. People v. Sweet, 207 Cal.App.3d 78, 254 Cal.Rptr. 567 (2nd Dist.1989); People v. Superior Court (Jennings), 183 Cal.App.3d 636, 228 Cal.Rptr. 357 (2nd Dist.1986); State v. McKinney, 768 S.W.2d 178 (Mo.App.1989).

In the Georgia case of Dorsey v. State, 237 Ga. 876, 230 S.E.2d 307 (1976), it was held that the statutory provision currently found in OCGA § 16-1-8(c), barring prosecution for a crime already prosecuted in the federal courts, established a procedural right and therefore did not unconstitutionally divest the superior courts of their constitutional "exclusive jurisdiction" over the trial of felonies. See Ga. Const.1983, Art. VI, Sec. IV, Par. I. That case also stated "a statutory bar to a criminal prosecution and a statutory limitation upon a criminal prosecution are procedural prohibitions that do not affect jurisdiction in any way." Dorsey, supra at 878, 230 S.E.2d 307. We conclude that in Georgia a statute of limitation on criminal prosecution does not affect the trial court's subject matter jurisdiction.

Although the statute of limitation does not divest the court of jurisdiction, that does not resolve whether the protection can be waived in the manner attempted here. The issue does not seem to have been directly addressed. See Taylor v. State, 44 Ga.App. 64, 74-75(2), 160 S.E. 667 (1931) (analyzed statute of limitation under the assumption it was a personal right which defendant could "insist upon, or abandon, as may suit his purpose").

In examining whether Barrett's waiver of the statutes of limitation was effective, it must be noted that he received first offender treatment for crimes for which he could have been...