349 S.E.2d 822 | Ga. Ct. App. | 1986
This case comes to us on an allegation by appellant that he was tried and convicted in the Probate Court of Henry County of the same charges of driving under the influence of alcohol and speeding of which he was found guilty here, and thus, the trial court erred by denying his motion to dismiss the charges on the ground of former jeopardy. He also alleges that the instant case was based on a de novo appeal from his conviction in probate court, and therefore, it was error to reindict him as an habitual violator in addition to the DUI and speeding charges. The State’s contention that the motion was untimely is without merit. See McClure v. State, 179 Ga. App. 245, 246 (1) (345 SE2d 922) (1986).
Appellant’s statement to the trial court in arguing his motion to dismiss for former jeopardy stated that he was tried and convicted of these charges in probate court, and that the instant case was a result of a de novo appeal, which would be under the jurisdiction of the Superior Court of Henry County. The transcript does not reflect whether or not the trial court in making its ruling on appellant’s motion to dismiss took judicial notice of records on file in its own court in regard to this case, which it is authorized to do. Petkas v. Grizzard, 252 Ga. 104, 108 (312 SE2d 107) (1984). The record of the appeal, if any, in the trial court could be determinative of the issues.
Appellant also contends that the State had no authority to re-indict him as an habitual violator because a prosecutor is required by OCGA § 16-1-7 (b) to try all known offenses arising out of the same conduct in a single trial if a single court has jurisdiction over all such offenses. Since we cannot resolve this issue without first determining if appellant was, in fact, tried and convicted of DUI and speeding in the Probate Court of Henry County (see State v. Gilder, 145 Ga. App. 731, 733 (245 SE2d 3) (1978), afTd 242 Ga. 285), we must remand this case for a hearing to determine if appellant: (1) was tried and convicted of the same DUI and speeding charges in the Probate Court of Henry County; (2) if so, was the instant case a result of a de novo appeal filed in the Superior Court of Henry County; and (3) were the charges known to the prosecutor here at the time prosecution commenced in the lower court if there was, in fact, such a prosecution. Supplementation of the record shall be permitted at this hearing. The respective parties’ right of appeal in accordance with applicable rules and laws is accordingly preserved.
Case remanded with direction.