The State v. Lemay., 186 Ga. App. 146, 367 S.E.2d 61 (1988)

Georgia Court Of Appeals

Status: DECIDED

Docket Number: 75466

Parts: BENHAM, Judge.

Linked as:

Summary

Judgment reversed. Banke, P. J., and Carley, J., concur.

Summary

Judgment reversed. Banke, P. J., and Carley, J., concur.

Text

Dupont K. Cheney, District Attorney, J. Stephen Archer, Assistant District Attorney, for appellant.

Appellee LeMay was indicted for vehicular homicide, driving under the influence of alcohol, and speeding. A jury found appellee guilty of DUI and speeding, but was unable to reach a verdict on the vehicular homicide charge. After the trial court declared a mistrial as to that count, the State initiated proceedings to re-try appellee on the vehicular homicide charge. Appellee then filed a plea in bar, contending that a retrial would violate the statutory as well as the federal and state constitutional proscriptions against double jeopardy. The trial court granted appellee's motion, causing the State to file this appeal. See OCGA 5-7-1 (3); State v. Stowe, 167 Ga. App. 65 (1) (306 SE2d 663) (1983).

2. OCGA 16-1-8 (a) bars a prosecution "if the accused was formerly prosecuted for the same crime based upon the same material facts, if such former prosecution: (1) Resulted in either a conviction or an acquittal; or (2) Was terminated improperly after the jury was impaneled and sworn . . ." It is not improper to terminate a prosecution when the jury is unable to reach a verdict. OCGA 16-1-8 (e) (2) (C). Since appellee, now facing a charge of vehicular homicide, was formerly tried for the same crime based upon the same facts, and the prosecution resulted in neither conviction nor acquittal but was properly terminated, OCGA 16-1-8 (a) does not bar this prosecution of appellee for vehicular homicide.

3. Pointing out that he was convicted of driving under the influence, appellee contends that the second prosecution is barred under OCGA 16-1-8 (b) (1). That subsection bars prosecution if the accused "was formerly prosecuted for a different crime or for the same crime based upon different facts, if such former prosecution: (1) Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime of which the accused could have been convicted on the former prosecution, is for a crime with which the accused should have been charged on the former prosecution . . . , or is for a crime which involves the same conduct, unless each prosecution requires proof of a fact not required on the other prosecution . . ." Making the argument raised but the merits of which were not addressed in Bell v. State, 249 Ga. 644 (2) (292 SE2d 402) (1982), appellee asserts that he may not now be prosecuted for vehicular homicide because the same evidence used to convict him of the DUI charge would be needed to convict him of vehicular homicide. In making his argument, appellee is apparently relying upon that portion of OCGA 16-1-8 (b) (1) that was designated (iii) (A) by the Supreme Court in McCannon v. State, 16-1-8 (b) in a case where an accused is being prosecuted for a crime, the first trial of which was terminated for any reason listed in OCGA 16-1-8 (e), is misplaced. OCGA 16-1-8 (a) governs in such a case, since it is a situation in which the accused was formerly prosecuted for the same crime based upon the same material facts. Subsection (b) governs if the accused was formerly prosecuted for a different crime or the same crime based upon different facts. If a case fits within the parameters of subsection (a), that becomes the exclusive means for determining whether double jeopardy bars a retrial. Subsection (b) governs cases in which the State brought separate prosecutions for a greater and included offense, in violation of OCGA 16-1-7 (b). If subsection (b) is applicable to a case such as the one at bar, one in which an accused is tried for multiple offenses, several of which are offenses included in one of the other charges, and is convicted of the lesser offenses but suffers a mistrial with regard to the greater offense, then the State would only be able to retry the accused on the greater offense if an evidentiary quirk arose. See, e.g., Bell v. State, supra, Division 2. In the vast majority of cases, the portion of OCGA 16-1-8 (b) (1) that calls for each prosecution to require proof of a fact not required in the other prosecution would bar retrial since cases involving included offenses, by their very definition, preclude proof of a fact in the included offense that is not required to be proved in proving the greater offense. Such an application of the statute would also fly in the face of the Supreme Court's holding in Bell, supra: "[W]here the State sought to prosecute a defendant on two offenses in a single prosecution, one of which is included in the other, and the defendant receives a mistrial on the greater offense, the remaining conviction of the lesser offense does not bar retrial of the greater offense." Id. at Division 3.

Appellee's prior trial on the vehicular homicide charge did not end in conviction, acquittal, or improper termination. Therefore, retrial on that same charge is not barred by either the constitutional or statutory prohibitions against double jeopardy. Of course, as was noted in Bell, should appellee be convicted of vehicular homicide on retrial, the trial court must set aside the conviction of driving under the influence since it is an offense included in vehicular homicide (see OCGA 40-6-393; Rank v. State, 179 Ga. App. 28 (2) (345 SE2d 75) (1986)), and OCGA 16-1-7 (a) (1) prohibits conviction of both offenses.

Ray C. Smith, for appellee.

1988