Royce Palmer v. State
341 Ga. App. 433
| Ga. Ct. App. | 2017Background
- Palmer and Ellerbee took a trailer loaded with pecans in Calhoun County, transported and sold the pecans in Irwin County, and disposed of the trailer in the Alapaha River.
- They were arrested in Irwin County and charged with two counts of theft by receiving; later arrested in Calhoun County and indicted for theft by taking and criminal trespass.
- On February 28, 2013, the men entered an Irwin County pretrial intervention (diversion) program (no indictment/accusation filed in Irwin); the program required two years’ compliance and a $1,000 fine for dismissal of Irwin warrants.
- While participating (after one year and after paying the fine), they were prosecuted in Calhoun County on the earlier indictment; they filed pleas in bar asserting double jeopardy based on the Irwin diversion.
- The Calhoun Superior Court denied the pleas in bar; the defendants stipulated to a bench trial, were convicted, sentenced as first offenders, and appealed the denial of their pleas in bar.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether entering a pretrial intervention program in Irwin County barred subsequent prosecution in Calhoun County for the same conduct | Palmer/Ellerbee: entering the Irwin diversion constituted a prior prosecution (or an agreement binding the State) so jeopardy attached and bars Calhoun prosecution | State/Trial court: No indictment or accusation was filed in Irwin; no prosecution occurred there, so jeopardy never attached | Denied: diversion did not constitute a prior prosecution; jeopardy had not attached in Irwin, so Calhoun prosecutions were not barred |
| Whether Georgia statutory law (OCGA §§16-1-7, 16-1-8) expands double jeopardy to bar successive prosecutions across counties absent certain formal proceedings | Palmer/Ellerbee: statutory protections should prevent successive prosecutions when based on same material facts and diversion was the State’s commitment | State: Statutes require a former prosecution that resulted in conviction/acquittal or certain terminations; none occurred in Irwin | Held: Statutory text controls; no prior prosecution occurred in Irwin under OCGA definitions, so statutes do not bar Calhoun prosecutions |
| Whether counties are separate sovereigns for double jeopardy purposes | Palmer/Ellerbee: impliedly argue separate county actions should be limited when based on same conduct and diversion promises | State: Counties are not separate sovereigns; prosecutions are on behalf of the State of Georgia | Held: Counties are not separate sovereigns; this point does not create a separate sovereign exception favoring defendants |
| Whether completion or enforcement of diversion agreements can operate as a contract barring later prosecution | Palmer/Ellerbee: diversion agreement terms (dismissal upon completion) should bind the State and bar later prosecution | State: Pretrial intervention is not identical to a plea bargain or final disposition; without formal dismissal or conviction/acquittal, jeopardy did not attach | Held: Court declined to treat the Irwin diversion as a prior prosecution; defendants’ participation did not invoke double jeopardy protection in this posture |
Key Cases Cited
- Brown v. Ohio, 432 U.S. 161 (establishes double jeopardy protection against successive prosecutions)
- Keener v. State, 238 Ga. 7 (discusses multi-transaction prosecutions and timing of bar to multiple convictions)
- Prater v. State, 273 Ga. 477 (Georgia Code extends double jeopardy analysis to OCGA §§16-1-6, 16-1-7, 16-1-8)
- Phillips v. State, 298 Ga. App. 520 (statutory double jeopardy standards and limits)
- Jackson v. State, 284 Ga. 826 (county prosecutions are not separate sovereigns)
- Perkinson v. State, 273 Ga. 491 (reiterates that multiple Georgia counties are not separate sovereigns)
- Pope v. State, 309 Ga. App. 728 (jeopardy did not attach when trial court did not accept an earlier guilty plea)
- Evans v. State, 293 Ga. App. 371 (distinguishes diversion from sentence; discusses limits of treating diversion as binding contract)
- Armstrong v. State, 281 Ga. App. 297 (jeopardy not attached where earlier jurisdictional defects prevented formal prosecution)
- State v. Nwobu, 652 A.2d 1209 (N.J. case recognizing that successful diversion leading to dismissal can bar later prosecution)