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How Can a Double Jeopardy Argument Help My Case?

Many times cases involve the transferring of tickets and/or charges from municipal courts to state court or Superior Court for that matter. Sometimes, this can lead to double jeopardy arguments if the state does not process the charges correctly.

Howard and Arca has had successful double jeopardy arguments in the past resulting in dismissals for our clients. For purposes of double jeopardy, a State and municipality are considered to be the same sovereign. In Waller v. Florida 397 U.S. 387 (1970), the defendant and others removed a campus mural from a wall of City Hall and carried it through the streets of the city. The defendant was charged with and found guilty of the violation of two city ordinances: destruction of city property and disorderly breach of the peace. Later, over objection, he was charged with and convicted of grand larceny, a felony.

The United States Supreme Court in a unanimous decision concluded that a state may not try a defendant for an offense for which he was already been tried in a municipal court. The court said, political subdivisions of states; counties, cities, or whatever, never were and never have been considered as sovereign entities. Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions. The ruling is fully retroactive to cases decided before Waller. In State v. Burroughs, 246 Ga. 393, 394 (1980), the supreme court on a federal constitutional grounds said that a person who has been convicted of a crime having several elements may not later be tried for a lesser included offense consisting solely of one or more of the elements of the crime for which he had already been convicted or tried.

Likewise, a conviction or trial of a lesser included offense bars a later trial on the greater offense. Illinois v. Vitale 447 U.S. 410 (1980). In State v. Gilder 145 Ga. App. 731 (1978), the defendant pled guilty to driving under the influence in state court. He was later indicted in Superior Court as a habitual violator. The court held that the defendant’s plea in bar was valid, since the habitual violator charge, a felony, was based in part on the driving under the influence case, and the election by the State to charge the defendant with a misdemeanor prevented the later indictment based in part on the earlier case. Double jeopardy does not attach if the inferior court did not have jurisdiction to try the case which was before it. Thus, where defendant is tried in the Municipal Court for theft by taking, this does not prevent a later trial in state court for the same offense: State v. Ramsey 143 Ga. App. 191 (1977). Rangel v. State, 217 Ga. App. 152 (1995).

In State v. Perkins, 256 Ga. App. 855 (2002), a divided Court of Appeals ruled that the trial court properly dismissed a felony vehicular homicide where the defendant pled guilty to the lesser included offense of reckless driving in probate court. OCGA 40-6-376(D) prohibits the prosecution of any offense arising out of the felony vehicular homicide case except in a court having jurisdiction to hear the felony case. Although the Probate Court did not have jurisdiction to hear the felony vehicular homicide case, it did have jurisdiction over misdemeanor vehicular homicide cases. Since the guilty plea to the reckless driving charge was entered before the vehicular indictment was returned, majority of the Court found that the felony prosecution was barred on former jeopardy grounds.

The Supreme Court however, reversed, finding that because the defendant had been charged with felony vehicular homicide on the uniform traffic citation issued at the time of arrest, the probate court never had jurisdiction over the offense. The court concluded that the indictment simply superseded the UTC as his charging document. State v. Perkins 276 Ga. 621 (2003).

Make sure to hire a criminal defense lawyer in Atlanta like Howard and Arca to maneuver your case professionally and efficiently through the legal system and to give you every advantage possible against the prosecution of your case.