Dorsey v. State , 237 Ga. 876 ( 1976 )

Gunter, Justice.

This appeal presents the issue of the constitutionality or unconstitutionality of a provision of the Criminal Code of Georgia, Code Ann. § 26-507 (c) which provides: "A prosecution is barred if the accused was formerly prosecuted in a District Court of the United States for a crime which is within the concurrent jurisdiction of this State if such former prosecution resulted in either a conviction or an acquittal, and the subsequent prosecution is for the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution, or the crime was not consummated when the former trial began.”

The appellant was indicted by a federal grand jury and also by a Georgia grand jury for crimes that arose out of the same transaction. The appellant entered pleas of guilty in the United States District Court for the Southern District of Georgia. Prior to his arraignment on the charges contained in the Georgia indictment, he filed his plea-in-bar of his prosecution by Georgia and relied on Code Ann. § 26-507 (c) quoted above.

The state and the appellant stipulated that the offenses charged in the federal and state indictments were the same and arose out of the same conduct by the appellant for which the appellant had been convicted and sentenced in the United States District Court.

The district attorney contended that Code Ann. § 26-507 (c) was an unconstitutional statute in that it ousted the superior courts in Georgia of their "exclusive jurisdiction” as provided for in the Georgia Constitution, Code Ann. § 2-3901.

The trial judge ruled in favor of the district attorney’s position; he held that the exclusive jurisdiction of the superior courts could not be altered or surrendered to another court or sovereign by an Act of the Georgia General Assembly; and he overruled the appellant’s plea-in-bar of prosecution by the state.

A jury trial followed on the state charges; the appellant was convicted and sentenced; and he has come to this court urging, along with other enumerated errors, that his plea-in-bar should have been sustained, and that his convictions by the state cannot stand.

We agree with the appellant’s position on this issue, and the judgment below must be reversed.

Code Ann. § 26-507 (c) does not oust the Georgia superior courts of their "exclusive jurisdiction” over the trial of capital felonies. It is a procedural statute as distinguished from a jurisdictional statute; it merely bars a prosecution by the state if the accused was formerly prosecuted and convicted in a District Court of the United States for a crime over which the federal court had jurisdiction and over which the superior court had concurrent jurisdiction; and such a statute can be enacted by the Georgia General Assembly without contravening the constitutional provision that endows the superior courts with éxclusive jurisdiction in this state over the trial of capital felonies.

In State v. Estevez, 232 Ga. 316 (206 SE2d 475) (1974), this court said: "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.” P. 319.

In the Committee Notes, Code Ann. Ch. 26-5, we find this comment: "Subsection (c) of Section 26-507 is a new feature in the law of Georgia, in which it has long been held that double jeopardy provisions of the Constitution do not prohibit multiple prosecution for the same act if that act constituted an offense against more than one sovereign. Subsection (c) results in protection of the accused against prosecution by the State of Georgia if his act had previously resulted in prosecution by the Federal Government on the same terms as though the prior prosecution had been by the State of Georgia.”

Argued April 13, 1976 Decided November 3, 1976 Rehearing denied November 23, 1976. DeWitt R. Dent, for appellant. H. Reginald Thompson, District Attorney, Arthur K. Bolton, Attorney General, Isaac Byrd, Assistant Attorney General, for appellee.

We respectfully disagree with the ruling made below; 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; Code Ann. § 26-507 (c) is a constitutional statute; and the plea-in-bar of prosecution by the state should have been sustained.

Judgment reversed.

All the Justices concur, except Jordan, J., who dissents.