State v. Stowe ( 1983 )

Quillian, Presiding Judge.

The defendant (appellee) was charged under a seven-count indictment involving a vehicular death which occurred on October 6, 1974. The first count of the indictment was for Murder, the remaining counts were: 2) Vehicular Homicide — First Degree, 3) Vehicular Homicide — Second Degree, 4) Reckless Driving, 5) Driving Under the Influence, 6) Leaving the Scene of an Accident, and 7) Driving Left of Center Line.

As contained in the recitation of facts of the trial judge’s order, the following then transpired: “On May 13, 1982, a jury was impanelled and sworn and the defendant was placed on trial for all of these offenses. In the early stages of the trial, the defendant objected to the introduction of any evidence by the State to show that the identity of the defendant as the alleged perpetrator of these offenses was not known until December 1980, which was an attempt by the State to bring the charges alleged in Counts 2-7 of the indictment within an exception to the statute of limitations. Based on the authority of Hollingsworth v. State, 7 Ga. Appeals 16 (65 SE 1077), this objection was sustained; and the Court informed counsel that only the charge of Murder (Count 1) would be submitted to the jury.

“After the State’s evidence had been presented, the defendant moved for a directed verdict of acquittal on the charge of murder. Argument was heard on this motion, and the Court reserved its ruling until after the jury returned its verdict.

“The charge of Murder was submitted to the jury, which became hopelessly deadlocked after deliberating approximately eight hours, and the Court declared a mistrial.

“The defendant thereupon renewed his motion for a directed verdict on the charge of Murder, and also moved for a verdict of acquittal on all the other charges in the indictment. Counsel requested and were given time to prepare and present written briefs on the questions presented.”

The trial judge denied the motion for directed verdict of acquittal as to Counts 2 through 7, but granted the defendant’s motion as to the First Count (Murder). The State then brought a new indictment against the defendant in which the counts were as previously listed. However, Counts 2 through 7 each contained an allegation that from October 6, 1974 until December 1980 the defendant was unknown within the meaning of Code Ann. § 26-503 (b) (now OCGA § 17-3-2).

The defendant filed a plea of former jeopardy to each of the new seven counts of the indictment. The trial judge entered an order which recognized that the State conceded that the plea was good as to Count 1 (Murder) but opposed the plea as to the other counts. In his order the trial judge sustained the plea in bar as to Counts 2 through 5 and Count 7 and denied the plea as to the Sixth Count (Leaving the Scene of an Accident). The State appeals from that portion of the order adverse to it. Held:

1. Appellee contends the appeal should be dismissed since the State (appellant) has no right under OCGA § 5-7-1 (Code Ann. § 6-1001a) to appeal the grant of this plea in bar.

The Georgia Supreme Court has established that the denial of a plea of former jeopardy, although technically not final within the meaning of OCGA § 5-6-34 (Code Ann. § 6-701), is treated as final and appealable. Patterson v. State, 248 Ga. 875, 876 (287 SE2d 7).

OCGA § 5-7-1 (3) (Code Ann. § 6-1001a) provides: “An appeal may be taken by and on behalf of the State of Georgia from the superior courts and such other courts from which a direct appeal is authorized to the Court of Appeals of Georgia and the Supreme Court of Georgia in criminal cases in the following instances:... From an order, decision, or judgment sustaining a plea or motion in bar, when the defendant has not been put in jeopardy.”

Double jeopardy is the subject of a plea in bar, the grant of which has been considered by this Court. State v. Tuzman, 145 Ga. App. 481 (243 SE2d 675); State v. Willis, 149 Ga. App. 509 (1) (254 SE2d 743); State v. Gilmer, 154 Ga. App. 673 (1) (270 SE2d 25). See also State v. Benton, 246 Ga. 132 (269 SE2d 470).

We find no merit in appellee’s motion to dismiss.

2. We now consider the merits of this appeal.

In State v. Brittain, 147 Ga. App. 626 (249 SE2d 679), this Court considered facts where a defendant was arrested for driving unsafely and also charged with driving under the influence of intoxicants arising out of the same situation. The results of a breath-blood-urine test were suppressed, the trial judge refused to allow evidence in this regard to be admitted and dismissed the driving under the influence charge; the State accepted a plea of guilty as to unsafe driving. The State then appealed. This Court citing Code Ann. § 26-506 (b) (now OCGA § 16-1-7 (b)) found both offenses arose out of the same course of conduct and at the same time. It was then held: “Upon being faced with a dismissal of the drunk driving offense, the state had the option of taking an appeal from the action of the trial court while withholding prosecution of the second offense pending the outcome of the appeal, or in the alternative, proceeding with the prosecution of the remaining offense. Having elected to proceed with the remaining offense, the state is barred from trial on the dismissed offense by virtue of the doctrine of procedural double jeopardy.”

Decided May 13, 1983 Rehearing denied June 22, 1983. John T. Strauss, District Attorney, for appellant. Billy J. Waters, W. Don Ballard, for appellee.

The Brittain case, 147 Ga. App. 626, supra, is controlling here. The State was. required to prosecute all the offenses in a single prosecution by OCGA § 16-1-7 (b) (Code Ann. § 26-506) and having proceeded with such prosecution as to the count involving murder the other counts are barred by procedural double jeopardy.

Judgment affirmed.

Sognier and Pope, JJ., concur.