Boutwell v. State
311 Ga. App. 501
Ga. Ct. App.2011Background
- Boutwell was charged with misdemeanor theft by taking in Fayette County for May 20, 2010 taking of ring and chain; pled guilty on October 4, 2010.
- Boutwell was later charged in Fayette County Superior Court with felony theft by taking for May 3, 2010 taking of a necklace valued over $500; same victim as misdemeanor case.
- Boutwell moved to bar the felony prosecution on double jeopardy grounds; trial court denied the plea in bar.
- OCGA § 16-1-7 requires known crimes from the same conduct at trial to be prosecuted in one action unless exceptions apply; OCGA § 16-1-8_b bars subsequent prosecution for related crimes.
- The court held the felony charge did not arise from the same conduct as the misdemeanor; evidence could be separated; thus the second prosecution was not barred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether double jeopardy bars the felony prosecution | Boutwell claims same conduct as misdemeanor. | State contends different conduct; separate offenses. | Not barred; different conduct. |
| Effect of OCGA § 16-1-7/16-1-8 on multiple offenses known at trial | Crimes should be charged together as same conduct. | Prosecutions may proceed separately if not same conduct. | OCGA §§ 16-1-7 & 16-1-8 did not bar the second prosecution. |
| Does ‘the same conduct’ require same item, value, and date to merge prosecutions | Same victim and related thefts should merge. | Different items, different dates; not same conduct. | Not the same conduct; separate offenses. |
Key Cases Cited
- Davis v. State, 287 Ga.App. 535 (Ga. App. 2007) (same conduct analysis; not identical offense in different transactions)
- Prater v. State, 273 Ga. 477 (Ga. 2001) (multiple crimes arising from same conduct must be prosecuted together)
- Morgan v. State, 220 Ga.App. 198 (Ga. App. 1996) (same conduct includes more than identical conduct; factors for separability)
- Summers v. State, 263 Ga.App. 338 (Ga. App. 2003) (multiple theft offenses; separate prosecutions possible when separable)
- Teal v. State, 203 Ga.App. 440 (Ga. App. 1992) (evidence compatibility and separability between offenses)