LEVIN v. the STATE.
346 Ga. App. 340
Ga. Ct. App.2018Background
- Gregory Levin was convicted in 1994 of multiple offenses including kidnapping with bodily injury; some convictions were later reversed on direct appeal for trial error.
- In 2014 the Georgia Supreme Court (Levin v. Morales) reversed Levin’s kidnapping conviction for lack of legally sufficient asportation evidence after a post-trial change in law (Garza). The Court directed resentencing on merged counts.
- On remand Levin was resentenced on an aggravated battery count (previously merged); he appealed that resentencing and the appeal’s remittitur was filed in Feb 2016.
- Levin was re-arraigned on several charges (kidnapping, aggravated assault, firearm possession, harassing phone calls) on Dec 21, 2016 and filed (that day) motions: plea in bar/autrefois convict (double jeopardy) as to kidnapping, a constitutional speedy-trial dismissal for all charges, and judge disqualification/recusal.
- The trial court denied all motions; Levin appealed and the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether double jeopardy bars retrial on kidnapping after reversal for insufficiency caused by a post-trial change in law | Levin: reversal for insufficiency precludes retrial under double jeopardy | State: insufficiency arose from a later change in law, not failure of proof at trial; retrial is permitted | Denied — retrial not barred when insufficiency results solely from post-trial change in law |
| Whether speedy-trial violation requires dismissal of kidnapping and other charges | Levin: lengthy delays between remittiturs/rearraignment and motion amount to presumptive prejudice and warrant discharge | State: delays explained by docket, appeals, and Levin’s own actions; Barker factors weigh against Levin | Denied — court found delays presumptively prejudicial but Barker balancing favored the State; no abuse of discretion |
| Whether judge should be disqualified/recused for alleged bias after Levin filed writ against judge | Levin: prior mandamus against the judge undermines impartiality and warrants recusal | State: motion was untimely, not properly presented, and lacked required affidavit under USCR 25 | Denied — procedural prerequisites not met; no abuse of discretion |
Key Cases Cited
- Garza v. State, 284 Ga. 696 (established legal standard for asportation under Georgia kidnapping statute)
- Levin v. Morales, 295 Ga. 781 (Georgia Supreme Court reversing kidnapping conviction post-Garza)
- Green v. State, 291 Ga. 287 (double jeopardy bars retrial when reversal is for insufficiency)
- Barker v. Wingo, 407 U.S. 514 (speedy trial balancing test)
- Doggett v. United States, 505 U.S. 647 (speedy trial precedent on presumptive prejudice)
- Burks v. United States, 437 U.S. 1 (insufficiency-based reversal bars retrial doctrine)
- United States v. Robison, 505 F.3d 1208 (11th Cir. — retrial permitted after post-trial change in law)
- United States v. Ford, 703 F.3d 708 (4th Cir. — same conclusion on post-trial change in law)