Powe v. State

Bell, Justice.

This opinion concerns the proper interpretation of OCGA § 16-1-7 (b), which states that “[i]f 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. . . .” On direct appeal of this case the Court of Appeals affirmed the superior court’s denial of Powe’s plea in bar to his felony prosecution. We granted certiorari to consider whether § 16-1-7 (b) should apply only to crimes which are actually known to the prosecuting officer actually handling the proceedings. Today, in Baker v. State, 257 Ga. 567, 568 (361 SE2d 808) (1987), we hold that the statute applies “ ‘only to such crimes which are actually known to the prosecuting officer actually handling the proceedings.’ ” As we will explain in the remainder of this opinion, we find that the rule of Baker controls this case, and, applying that rule to this case, we affirm the judgment of the Court of Appeals.

The facts are as follows: Eddie L. Powe received a ticket for making an improper lane change, following a traffic stop on April 29,1986, on Interstate 75 in Bibb County. Police officers found marijuana and a pistol in his car and, on May 7, Powe was indicted for the felony offense of trafficking in marijuana.¹ On May 6 or 7, Powe’s attorney talked with an assistant state court solicitor about acceptance of a guilty plea from Powe on the improper lane change charge, asking the assistant solicitor to dispose of the case quickly because Powe lived out of town and could not make bail. Powe’s attorney did not mention the pending felony case and the solicitor’s office was otherwise unaware of the felony charge. The solicitor’s office agreed to place the lane change offense on the May 8 plea calendar.

On May 8 Powe appeared without counsel in Bibb County State Court to enter his guilty plea. When the court asked Powe if he had other charges outstanding against him, he said he had a case pending in Bibb County Superior Court but did not state that the pending case was the marijuana trafficking charge. Neither the judge nor the assistant solicitor asked Powe whether the state court and superior court cases were related. The court accepted Powe’s plea and orally sentenced him to pay court costs. The assistant state court solicitor who handled the guilty plea learned from a newspaper article the next morning about Powe’s indictment on the related felony charge, and, as a result, moved to nolle pros the improper lane change offense. The state court judge withdrew Powe’s guilty plea, which had never been formally entered, and transferred Powe’s case to superior court. The judge also granted the motion to nolle pros the improper lane change offense. Powe then filed his plea in bar in superior court, the denial of which was affirmed by the Court of Appeals.

After reviewing this case we find that the “proper prosecuting officer” was the assistant state court solicitor who actually handled the taking of Powe’s guilty plea on the improper lane change offense. We conclude, further, that as to him there has been no showing of actual knowledge of the felony case pending against Powe. Although the better practice would have been for the assistant solicitor to have explored the nature of the pending superior court case once Powe had mentioned it, the solicitor was not required to do so under the rule we establish today in Baker. Moreover, nothing in Powe’s answer to the trial court’s question provided, in and of itself, any indication that the case in superior court arose out of the same conduct as the traffic charge.

As we observe in Baker, supra, 257 Ga. at 568, “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.” In the instant case, Mr. Powe could have availed himself of the protection of § 16-1-7 (b) by the minimal act of telling the assistant solicitor who attended the state court proceedings that the charges in state and superior courts arose from the same conduct, but he did not do so. To permit the defendant to invoke § 16-1-7 (b) under the circumstances of this case would be the sort of miscarriage of justice which our decision in Baker, supra, 257 Ga. at 568, is designed to prevent.

For the foregoing reasons, we hold that, because the assistant state solicitor who handled the guilty plea did not have actual knowledge of the felony case, there was no violation of OCGA § 16-1-7 (b). The trial court therefore did not err in denying the plea in bar.²

Judgment affirmed.

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

1 The district attorney was aware of the traffic charge at that time. Powe was reindicted on June 2. The reindictment contained an additional count against Powe, charging him with possession of a firearm during the commission of a felony, but, like the first indictment, did not charge the traffic offense.

2 We are cognizant that the Court of Appeals addressed other issues in its opinion in this case. However, we did not grant certiorari to consider those other issues, nor have we considered them on certiorari.