337 Ga. App. 675
Ga. Ct. App.2016Background
- At ~4:00 a.m. on Dec. 28, 2014, trooper observed Hantz speeding (90 mph in 65 mph zone), swerving, smelled alcohol, noted bloodshot eyes and slurred speech; roadside breath showed alcohol and she refused state-administered breath test. Citations issued for DUI and speeding.
- Hantz was charged by accusation with DUI and speeding, pled not guilty and demanded a jury trial; on the morning of trial she orally pleaded guilty to speeding as part of a negotiated plea but did not immediately sign a written plea or receive a written judgment.
- The court accepted the oral guilty plea to speeding and announced it would follow the state’s recommended sentence, then proceeded to jury selection and tried the DUI charge the next day; the jury convicted Hantz of DUI.
- After the DUI verdict, the court orally sentenced Hantz for DUI, stated it would run consecutive to the speeding sentence, and then Hantz signed and the court filed a single written judgment that entered convictions and sentences for both DUI and speeding.
- Trial counsel filed a motion for new trial (denied) and a notice of appeal; new appellate counsel was appointed after trial counsel’s appeal filing. On appeal Hantz argued trial counsel was ineffective for not filing a plea in bar to preclude prosecution of the DUI after her speeding plea.
Issues
| Issue | Hantz's Argument | State's Argument | Held |
|---|---|---|---|
| Whether trial counsel was ineffective for failing to file plea in bar to DUI prosecution after Hantz’s guilty plea to speeding | Hantz: OCGA §§ 16-1-7(b) and 16-1-8(b)(1) bar subsequent prosecution because all crimes from same course of conduct must be prosecuted together; her speeding plea was a prior prosecution/conviction that should have encompassed the DUI | State: The oral guilty plea to speeding did not produce a final conviction until a written judgment was entered, which occurred after the DUI trial; thus no prior prosecution/conviction barred the DUI prosecution; motion would have been meritless | Counsel was not ineffective because a plea in bar would have been meritless—the speeding plea did not constitute a prior conviction until a written judgment was entered, which occurred after the DUI trial. |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (discussing standard for construing evidence in favor of the verdict)
- Strickland v. Washington, 466 U.S. 668 (ineffective-assistance two-prong test)
- Ruiz v. State, 286 Ga. 146 (when to remand for evidentiary hearing on ineffectiveness claim)
- Russell v. State, 267 Ga. 865 (earliest practicable opportunity for raising ineffective-assistance-on-appeal when appellate counsel appointed after appeal filed)
- Dorsey v. State, 259 Ga. App. 254 (definition: conviction is final judgment entered on verdict or plea)
- Allen v. State, 333 Ga. App. 853 (oral sentence is not final until signed and entered)
- Young v. State, 328 Ga. App. 91 (proceedings remain pending until written sentence entered)
- Collins v. State, 177 Ga. App. 758 (no former prosecution where no written judgment entered before subsequent trial)
- Riddick v. State, 320 Ga. App. 500 (failure to file meritless motion does not constitute ineffective assistance)