Powe v. State ( 1986 )

Banke, Chief Judge.

Powe appeals the denial of his plea in bar based on the statutory double jeopardy provisions of OCGA §§ 16-1-7 (b) and 16-1-8 (b).

On April 29, 1986, a Georgia state patrolman stopped an automobile being driven by the appellant, Powe, and issued a traffic citation to him for making an improper lane change. As a result of the stop, the vehicle was searched, and a large amount of suspected marijuana was seized from the trunk, resulting in Powe’s later indictment for the felony offense of trafficking in marijuana. After the car had been impounded at the sheriff’s office, it was also found to contain a gun, with the result that Powe was also indicted for the felony offense of possession of a firearm during the commission of a felony.

On May 6 or 7, 1986, Powe’s counsel, J. Robert Daniel, went to the office of John Sikes, Assistant Solicitor of the State Court of Bibb County, to discuss the disposition of his client’s traffic charge. Daniel told Sikes that his client had been charged with making an improper lane change, that he lived out of town, and that, because he had been unable to post a bond, he had remained in jail since the offense. For those reasons, Daniel asked Sikes to dispose of the traffic violation expeditiously. Daniel made no mention of the pending felony charges for trafficking in marijuana and felonious possession of a firearm, although he was well aware of those charges; and Sikes agreed to place the matter on the next plea calendar, which was scheduled for May 8, 1986.

Sikes testified that Powe’s traffic ticket had been returnable to state court for May 23, 1986. He stated that if Daniel had not prevailed upon him to expedite the case, a “jail list” reflecting the felony charges would have been checked in the normal course of business, resulting in the transfer of the misdemeanor traffic charge to superior court for disposition in conjunction with the felony charges. He further stated that, because Powe’s traffic ticket had not yet been transmitted to his office through normal administrative channels, he had to affirmatively request that it be delivered there so as to enable him to prepare an affidavit and accusation for the entry of the plea the following day.

On May 8, 1986, Powe appeared before the Honorable Taylor Phillips, Judge of the State Court of Bibb County, and pleaded guilty to making an improper lane change. Assistant Solicitor Otis Scarbary handled the plea, based on his understanding that Sikes and Daniel had reached an agreement on the case. Neither Scarbary nor Sikes was aware of the pending felony charges, and Daniel was not present in court. In the course of questioning the appellant about the plea, the judge inquired if he had any other cases pending, to which Powe acknowledged that he had a case pending in superior court. Powe then signed the plea, and the court orally sentenced him to pay court costs. Although the notation “CC” appears on the ticket, no written judgment of conviction was ever prepared, signed, or filed.

Within hours after the entry of the guilty plea, Assistant Solicitor Scarbary read in the morning paper that, on the previous day, the grand jury had indicted Powe for trafficking in marijuana. Shortly thereafter, an assistant solicitor met with Judge Phillips to advise him of this development, and Judge Phillips entered the following notation beneath Powe’s signature on the accusation: “The above plea of guilty is hereby withdrawn and the plea in the foregoing case having been improvidently entered, the same is hereby withdrawn and the case being transferred to the superior court the within accusation is nolle prossed on motion of the assistant solicitor, S.C.B.C. This 13th day of May 1986, nunc pro tunc, May 8, 1986.”

Thereafter, Daniel filed a plea in bar on behalf of Powe in superior court, contending that, “by allowing” a plea of guilty to the misdemeanor traffic offense arising from the same transaction, the state had lost its right to prosecute the felony indictment. The trial court denied the plea in bar, finding that the complete truth had been concealed from the state court judge and that the latter had been authorized, under the circumstances, to “withdraw” appellant’s plea. On appeal, Powe contends that the trial court erred in concluding that the state court proceedings did not constitute a bar to further prosecution within the contemplation of OCGA §§ 16-1-7 (b) and 16-1-8 (b). Held:

Although the state court judge characterized his action as a “withdrawal” of Powe’s plea, it is evident that the court did not actually “withdraw” anything but simply reversed his prior decision to accept the plea. In Curry v. State, 248 Ga. 183, 185 (281 SE2d 604) (1981), our Supreme Court held that “[a]n oral declaration as to what the sentence shall be is not the sentence of the court; the sentence signed by the judge is. [Cit.]” The Court thus concluded that “the oral declaration as to what the sentence would be was within the breast of the court and could be increased at any time before it was formally entered by the judge or before service of the sentence was commenced.” Id.

Certainly, the state court judge was not required to accept the appellant’s plea in the present case, particularly in light of the devious attempt by Powe’s counsel to manipulate the judicial process by exploiting the state court prosecutor’s ignorance of the pending felony charges. As was stated by the Supreme Court in State v. McCrary, 253 Ga. 747 (325 SE2d 151) (1985), “one who misuses the system, through no fault of the state, should not be able to successfully raise a plea in bar which arises because of his manipulation. ...” See also Collins v. State, 177 Ga. App. 758 (1) (341 SE2d 288) (1986). Al though in McCrary the Supreme Court, relying on McCannon v. State, 252 Ga. 515 (315 SE2d 413) (1984), determined that the acceptance of a defendant’s misdemeanor plea constituted a bar to his prosecution on felony charges arising from the same transaction, that decision was based on the fact that a single prosecuting officer with jurisdiction over all the offenses, i.e., an assistant district attorney, had made an “election” to allow the misdemeanor offenses to be disposed of separately rather than requiring all the offenses to be bound over to superior court. Similarly, in McCannon, supra, all the charges were pending in superior court and were thus within the knowledge of the district attorney at the time the plea was accepted on the misdemeanor charge.

In the present case, while it is undisputed that the district attorney’s office had knowledge of all the charges pending against Powe, such knowledge cannot, under the circumstances, reasonably be imputed to the assistant solicitor of the state court, nor can the district attorney’s office reasonably be deemed, as in McCrary, supra, to have made an election to allow the charges to be disposed of separately. See Webb v. State, 176 Ga. App. 576 (336 SE2d 838) (1985). Moreover, it was the action of the defense counsel in requesting expedited treatment of his client’s case in state court which prevented the solicitor from learning of the existence of the two felony charges prior to the arraignment. The defense attorney’s actions in this case clearly constituted an intentional manipulation and misuse of the process which should not be condoned.

Apparently foreseeing the possibility of a situation such as the one before us, Justice Weltner, in his special concurrence in McCannon, made the following observation: “Properly construed, [OCGA § 16-1-17 (b)] should apply only to such crimes which are actually known to the prosecuting officer actually handling the proceedings (as here the case). This would obviate the possibility of a miscarriage of justice in cases where the commission of other crimes arising from the same conduct may not be within the actual knowledge of the prosecuting officer actually handling the prosecution.” Id. at 519. While it may be reasonable to impute the knowledge of one prosecuting officer to others working in the same office, it is not reasonable to do so where two entirely separate prosecuting offices are involved and where defense counsel has deliberately set out to exploit the situation.

We hold that the state court judge was not required to accept Powe’s guilty plea and that Powe’s attempt to enter such a plea did not, by itself, constitute a former prosecution within the meaning of OCGA §§ 16-1-7 (b) and 16-1-8 (b). It follows that the trial court did not err in denying the plea in bar.

Judgment affirmed.

McMurray, P. J., Deen, P. J., Carley, Pope, and Benham, JJ., concur. Deen, P. J., and Pope, J., also concur spe dally. Beasley, J., concurs specially. Birdsong, P. J., and Sognier, J., dissent.