State v. Estevez

• Decision Date: 28 May 1974
• Docket Number: No. 28593,28593
• Citation: 232 Ga. 316,206 S.E.2d 475
• Parties: The STATE v. Daniel ESTEVEZ.
• Court: Georgia Supreme Court

Page 475

206 S.E.2d 475

232 Ga. 316

The STATE v. Daniel ESTEVEZ.

No. 28593.

Supreme Court of Georgia.

May 28, 1974.

Lewis R. Slaton, Dist. Atty., Morris H. Rosenberg, Carter Goode, Atlanta, for appellant.

Mason W. Stephenson, Atlanta, for appellee.

Syllabus Opinion by the Court

UNDERCOFLER, Justice.

Daniel Estevez was convicted on separate counts for illegal possession and illegal sale of cocaine. He was sentenced to two years for possession and six years for sale to run concurrently. On review the Court of Appeals vacated the conviction and sentence for illegal possession. Estevez v. The State, 130 Ga.App. 215, 202 S.E.2d 686. That decision relied upon Burns v. State, 127 Ga.App. 828, 195 S.E.2d 189, which applied the 1968 Georgia Criminal Code (Ga.L.1968, p. 1249), and held, '. . . The offense of sale of marijuana and heroin necessarily included the offense of possession of marijuana and heroin, that is, unless the evidence showed they were on different occasions on the same date. But in this instance the evidence showed that there was a merger of certain of the counts of possession and sale; thus, under the Criminal Code the doctrine of merger is still the law in this State.' See also Sturgis v. State, 128 Ga.App. 85, 195 S.E.2d 682. Our case of Gee v. State, 225 Ga. 669, 672, 171 S.E.2d 291, which held that the illegal possession and illegal sale of narcotic drugs were separate crimes was distinguished by the Court of Appeals in Burns on the basis that Gee was decided prior to the effective date of the 1968 Georgia Criminal Code. Upon the state's application we granted certiorari. Held:

1. To what extent may an accused be prosecuted, convicted and punished for multiple offenses arising from the same criminal conduct? Prior to the adoption of the 1968 Georgia Criminal Code such questions were determined under the double jeopardy proscriptions of the United States Constitution and the Georgia Constitution. See Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300.

These constitutional bars of double jeopardy are minimum standards. The 1968 Georgia Criminal Code has expanded the proscription of double jeopardy beyond that provided for in the United States and Georgia Constitutions. See Code Ann. §§ 26-505, 26-506, 26-507. Therefore questions of double jeopardy in Georgia must now be determined under the expanded statutory proscriptions. Consequently, previous Georgia decisions applying constitutional standards of double jeopardy will generally not be applicable.

To apply the 1968 Georgia Criminal Code provisions relating to double jeopardy properly we must recognize that the proscription has two aspects. First, there are limitations upon multiple prosecutions for crimes arising from the same criminal conduct. Second, there are limitations upon multiple convictions or punishments that may be imposed for such crimes. The former is generally referred to as the procedural aspect of double jeopardy and the latter as the substantive aspect. These are treated separately in the Criminal Code and properly so because the underlying policy in barring multiple prosecutions is different from that in barring multiple punishments.

The difference between the procedural bar and the substantive bar of double jeopardy has not always been recognized. Consequently, the rules for determining one have often been inappropriately applied to the other resulting in a confusion of decisions. 'Unfortunately, in many cases the courts have not distinguished between multiple convictions and successive prosecutions and as a result have indiscriminately intermingled the cases. Not only has this diminished any hope of clarity but it has enabled the prosecutor improperly to bring successive prosecutions by relying on cases in which the courts have quite properly upheld multiple convictions.' Friedland, Double Jeopardy (1966), p. 199. See Harris v. State, 193 Ga. 109, 17 S.E.2d 573. As a matter of fact there is authority to the effect that the constitutional bar of double jeopardy does not apply to multiple punishments; however, the United States Supreme Court has held otherwise. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656.

The first policy underlying the double jeopardy bar is to prevent harassment of the accused by successive prosecutions or the threat of successive prosecutions. In the opinion of most legal scholars the bar to successive prosecutions is the primary purpose underlying the double jeopardy principle. The second policy is to prevent excessive punishment. However, it must be conceded that the matter of punishment for particular criminal conduct is largely within the prerogative of the legislative branch of government. It must determine to what extent certain criminal conduct has demonstrated more serious criminal interest and damaged society and to what extent it should be punished.

As stated by Friedland, Double Jeopardy (1966), p. 198, 'The importance of the rule against multiple convictions can be easily exaggerated. Many courts and writers have recognized that the rule is of far less significance than rules against successive prosecutions, being more a matter of sentencing policy and of discovering the intent of the legislature than of protecting the accused from unwarranted harassment.'

The 1968 Georgia Criminal Code distinguishes the two aspects of double jeopardy. The rules barring multiple prosecutions are clearly different from those barring multiple punishments.

First, there are limitations upon multiple prosecutions arising from the same criminal conduct. Code Ann. § 26-506 entitled, 'Multiple prosecutions for same conduct' requires all crimes arising from the same conduct to be prosecuted in a 'single prosecution' provided they are in the same jurisdiction and are known to the prosecutor unless the court in the interest of justice orders separate trials. Code Ann. § 26-507 sets out in detail when a second prosecution is barred. These are matters of procedure. They prevent an accused from being unduly harassed by or threatened by successive criminal prosecutions.

The second policy expressed in the 1968 Georgia Criminal Code limits the convictions or punishments that may be imposed for crimes arising from the same criminal conduct. This is generally referred to as the substantive aspecr of the double jeopardy principle in that it relates to the penalty for criminal conduct as distinguished...