Baker v. State , 257 Ga. 567 ( 1987 )

Bell, Justice.

George Herman Baker was arrested by the Gwinnett County Police Department on May 14, 1985, for driving with no taillights. Officers also charged him with the felony offense of operation of a motor vehicle by a habitual violator. Baker entered a guilty plea to the traffic violation on July 2, 1985, in Gwinnett County State Court. A Gwinnett County Grand Jury indicted Baker on October 15, 1985, on the habitual violator charge. Baker, on November 20, 1985, filed a motion to dismiss the indictment based on a claim of procedural double jeopardy, which was denied by the trial court. The Court of Appeals upheld the trial court’s ruling. (Baker v. State, an unpublished opinion of the Court of Appeals, decided March 10, 1987.) We affirm.

Baker bases his double jeopardy claim on OCGA § 16-1-7 (b): “If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution. ...” It is undisputed that the traffic charge and the habitual violator charge arose from the same conduct and were within the jurisdiction of the Superior Court of Gwinnett County. The issue drawn into question on certiorari is whether the habitual violator crime was “known” to the assistant solicitor at the time of the guilty plea on the traffic charge.

Before answering this question, a review of the evidence introduced at the double jeopardy hearing is necessary. Baker’s arrest report indicates that Baker was charged with driving without taillights and with being a habitual violator. However, the assistant solicitor who handled Baker’s case testified that the solicitor’s office often was not provided with a copy of an arrest report, and often proceeded only with a traffic violation, a warrant, or other relevant paperwork. The assistant solicitor also testified that he did not remember whether an arrest report was in Baker’s file, but that, if a file contained information indicating that a felony was involved, it was his practice to send that file to superior court. The solicitor’s office, in keeping with a policy that called for destruction of files 90 days after disposition of a case, destroyed Baker’s state court file before the superior court proceedings. For the foregoing reasons Baker was unable to establish that the assistant solicitor had actual knowledge of the felony offense.

Baker, however, argues that this court, in determining whether the habitual violator charge was “known” to the assistant solicitor, should employ a constructive knowledge standard. He relies on the following language from State v. Gilder, 145 Ga. App. 731, 732 (245 SE2d 3) (1978), affirmed 242 Ga. 285 (248 SE2d 659) (1978): “It is obvious from the face of the accusations and indictment that the dates of all offenses were the same and arose from the same conduct, and were or should have been known to the prosecutor at the time of the misdemeanor convictions.” (Emphasis supplied.) Baker contends that the assistant solicitor should have known of the habitual violator charge, since Baker’s arrest report was either in the solicitor’s file or was available for his use.

We decline, however, to use a constructive knowledge standard. First, it appears that the “should have known” language of Gilder, supra, 145 Ga. App. at 732, was dicta, since the Court of Appeals’ holding was premised on its finding that the misdemeanor offenses “were known to the prosecutor at the time of commencing the prosecution in the lower court.” State v. Gilder, supra, 145 Ga. App. at 733. Moreover, we can find no other case in this state adopting this standard. Most importantly, we conclude that such a standard is not mandated by the statute, and would place too great a burden on prosecutors, who would have to institute strict requirements to insure that all police agencies with whom they work file complete arrest reports on every case.

Recognizing the difficulties that could result from a constructive knowledge test, we decline to adopt it. Instead, we will adopt the test suggested by the concurring opinion of Justice Weltner in McCannon v. State, 252 Ga. 515, 519 (315 SE2d 413) (1984), applying OCGA § 16-1-7 (b) “only to such crimes which are actually known to the prosecuting officer actually handling the proceedings.” (Emphasis in original.) As noted by Justice Weltner, this construction will “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.” McCannon, supra, 252 Ga. at 519. (Emphasis in original.) Moreover, the adoption of this rule does not impose an unfair or inequitable burden on the defendant, since he can invoke the procedural protection of § 16-1-7 (b) by the simple act of apprising the proper prosecuting officer of the existence of any crimes arising from the same conduct which are not actually known to that officer.

Applying this holding to the present case, we find that, since Baker did not establish that the assistant solicitor had actual knowledge of the felony offense that arose from the same conduct as the traffic charge, the state may proceed with its prosecution of the habitual violator offense against Baker.

Judgment affirmed.

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