Doctor v. State , 275 Ga. 612 ( 2002 )

Fletcher, Chief Justice,

concurring specially.

I concur in the judgment affirming the convictions in this case. However, I write separately to address division 3 of the majority opinion and to reiterate that the concept of double jeopardy, as embodied in our statutes and constitution, prohibits successive prosecutions for crimes arising from the same conduct, as well as multiple convictions for the same crime. These dual aspects of the double jeopardy rule are often referred to as substantive and procedural.²

The majority is correct that OCGA § 16-1-7 (a), which relates to the substantive aspects of double jeopardy, permits charging a defendant with multiple crimes “when the same conduct of an accused may establish the commission of more than one crime.” However, OCGA § 16-1-7 (b), which relates to the procedural aspects of the double jeopardy clause, limits the ability of the State to prosecute the crimes successively by requiring that all crimes arising from the same conduct be prosecuted in a single action when known to the prosecuting officer.

In the present case, the State did initiate a single prosecution for all the offenses arising out of the death of the victim. All the offenses charged against Doctor were made in a single indictment, but the prosecution of these charges was made successively. Doctor, however, waived his procedural double jeopardy claim by pleading guilty to the lesser-included offense of theft by taking and then going forward without objection in a jury trial on the greater offense of robbery by force.

Decided October 15, 2002. John T. Strauss, Anthony S. Carter, for appellant. W. Kendall Wynne, Jr., District Attorney, Thurhert E. Baker, Attorney General, Ruth M. Bebko, Assistant Attorney General, for appellee.

2 See State v. Estevez, 232 Ga. 316 (206 SE2d 475) (1974).