State v. Fordham, s. 68738

• Decision Date: 04 December 1984
• Docket Number: 68740,68739,Nos. 68738,s. 68738
• Parties: The STATE v. FORDHAM.
• Court: Georgia Court of Appeals

Page 796

324 S.E.2d 796

172 Ga.App. 853

The STATE v. FORDHAM.

Nos. 68738, 68739, 68740.

Court of Appeals of Georgia.

Dec. 4, 1984.

Michael T. Solis, Asst. Dist. Atty., for appellant.

Terry F. Holland, W. McMillan Walker, Eastman, for appellee.

Mark Lee Stevens, amicus curiae.

POPE, Judge.

The defendant, Kelly Fordham, was charged in three separate indictments with a total of four counts of failure to pay for agricultural products, in violation of former Code Ann. § 5-9914. The offenses were alleged to have been committed in July and August of 1982. Although former Code Ann. § 5-9914 was in effect at that time, it was subsequently repealed by § 1-1-10(a)(1) of the Official Code of Georgia Annotated, which took effect on November 1, 1982, and the offense was not included in the new Code as originally enacted. It was added to the new Code, however, during the following session of the General Assembly, by the enactment of OCGA § 16-9-58 (Ga.L.1983), p. 485, § 2). The language of the two statutes is identical, although the new Code section is captioned "Failing to pay for natural products or chattels," whereas the former was entitled "Failing to pay for agricultural products and naval stores."

The indictments at issue were returned on October 19, 1983. The trial court subsequently dismissed the prosecutions based on the Supreme Court's holding in Gunn v. State, 227 Ga. 786(4), 183 S.E.2d 389 (1971), to the effect that the repeal of a statute making certain described conduct a crime, without a saving provision, puts an end to any prosecution for the offense which has not reached final judgment. The State appeals. Held:

The record shows that Fordham was originally indicted for these offenses in November 1982, and that these indictments were subsequently "nol prossed." New indictments for the same acts were handed down after the new law (Ga.L.1983, p. 485, § 2) became effective on July 1, 1983. Gunn v. State, supra, sets out the common law doctrine that where a criminal statute is repealed prior to a final judgment, and such repeal contains no saving clause, the repeal terminates the prosecution. Another recognized exception to this general rule, along with a saving clause, is where the legislature simultaneously repeals and reenacts statutes dealing with the same conduct. Neither exception applies in the present case.

There is no question that the enactment of the new Code on November 1, 1982 repealed the provision in question. It was not included in the Code. OCGA § 1-1-10(a) specifically repealed all general laws except those provided in the Code and some 93 exceptions set out in subsections (b)(1)-(15) and (c)(1)-(78) of OCGA § 1-1-10. The provision in question was not among these specific exceptions. Subsections (49), (50), (51) and (52) of subsection (c) specifically save from repeal certain laws dealing with the use of crops as mortgages. Subsections (15), (16), (17), (18) and (19) of subsection (c) all deal in some way with criminal procedure. Given the various laws specifically saved from repeal in OCGA § 1-1-10, it is unlikely that the absence of the provision in question was an inadvertent omission. This view is buttressed by examination of Ga.L.1983, p. 3, which discloses that the purpose of this act is "[t]o amend the Official Code of Georgia Annotated, so as to correct typographical, stylistic, and other errors and omissions...." If the provision in question were indeed an inadvertent omission, one would expect to find it enumerated among the 69 sections and 136 pages of this act. One does not. Instead, one finds the new OCGA § 16-9-58 enacted at Ga.L.1983, p. 485, § 2. The language prefacing this act is illuminating. In pertinent part it reads: "to enact a new Code Section 16-9-58 relating to the crime of failure to pay for agricultural products, naval stores, or other chattels...." (Emphasis supplied.) Further, Section 2 reads: "A new Code Section 16-9-58 is added at the end of Article 4 of Chapter 9 of Title 16 of the Official Code of Georgia Annotated, relating to forgery and fraudulent practices, said new Code section to read as follows...." (Emphasis supplied.) Although this act was passed in March 1983, it did not become effective until July 1983. The language quoted above, plus the eight-month period between the repeal of the old provision on November 1, 1982 and the effective date of the new provision July 1, 1983, compels the conclusion that the original omission was not inadvertent. Rather, the later enactment of OCGA § 16-9-58 reflects a legislative change of mind. Under these circumstances, the holding in Gunn v. State, supra, controls this case, and the trial court correctly dismissed the indictments.

Judgment affirmed.

BIRDSONG, P.J., and CARLEY, SOGNIER and BENHAM, JJ., concur.

BEASLEY, J., concurs specially.

McMURRAY, C.J., and DEEN and BANKE, P.JJ., dissent.

BEASLEY, Judge, concurring specially.

I agree with the majority but do not believe that Gunn provides the full answer because in the current case the repealed act was substantially readopted less than a year later.

The law, i.e., Gunn and the lack of a saving clause in the repealer, put an end to the first prosecution because the statute was repealed before final judgment.

The general rule would be that the new law (or reenacted law, if perceived in that fashion) had prospective effect only. That is, it applied to acts committed only on or after the date of its effectiveness. OCGA § 1-3-5; Winston v. State, 186 Ga. 573, 574, 198 S.E. 667 [disapproved on another ground in Todd v. State, 228 Ga. 746, 749, 187 S.E.2d 831]. See Hahn v. State, 166 Ga.App. 71, 74, 303 S.E.2d 299; Akins v. State, 231 Ga. 411(1), 202 S.E.2d 62. Otherwise there would be a lack of due process because the person committing the act would not have been forewarned that his contemplated act was a crime.

If the legislature intended a departure from this general rule, that this reenactment was to cover acts within the statute of limitations retroactively except for the period when the repealer was in effect, it should have said so. It did not. What is more, it did not even provide that the statute be effective upon passage in March but simply allowed it to become effective at the generally effective time, in July. So the legislature took no pains to specify that the statute was to cover acts which had occurred before the repealer.

In my opinion, we cannot guess at what the legislature meant. Nor can w...