Schiefelbein v. State , 258 Ga. 623 ( 1988 )

Gregory, Justice,

concurring specially.

The reason the defendant could not be tried in Fulton Superior Court was because venue of the action was in DeKalb County. It merely adds to confusion to refer to the problem as one of jurisdiction. The Superior Court of Fulton County had jurisdiction of the person, of the appellant and of the subject matter of the trial.

The unusual aspect of this case is that it was the prosecutor who discovered and raised the issue of improper venue. The rule should be that a defendant will be given a choice under such a circumstance. He may waive any objection to venue and insist on his right to go on with the first trial. If he chooses to insist on the proper venue he may do so but cannot complain of double jeopardy when the second trial takes place in the proper venue.

I am authorized to state that Justice Hunt joins in this concurrence.