On May 11, 2009, the State filed an accusation against Kevin Eugene Banks charging him with the sale of methamphetamine. Banks entered a plea of guilty to this charge pursuant to North Carolina v. Alford.
“The appellate standard of review of a grant [or denial] of a double jeopardy plea in bar is whether, after reviewing the trial court’s oral and written rulings as a whole, the trial court’s findings support its conclusion.”
The record shows that on February 19, 2009, the West Georgia Drug Task Force, using a confidential informant, purchased methamphetamine from Banks at 18 Bitter Sweet Lane in Newnan. This event led to the State’s initial accusation against Banks for sale of methamphetamine (case no. 2009-R-445).
A few days prior to the events that led to the first accusation, the Coweta County Crime Suppression Unit began conducting an independent investigation of Banks at a residence on Price Road in Newnan because of complaints of smells and heavy traffic at that location. On February 17,2009, when Banks’ truck was stopped by an officer, the officer noticed items consistent with the manufacture of
On February 19, 2009, the crime suppression unit was informed that Banks had sold methamphetamine from a residence on Bitter Sweet Lane earlier that day. After receiving this information, the crime suppression unit served an arrest warrant for unpaid child support on Banks at Bitter Sweet Lane on the same day. While serving the arrest warrant, officers observed items used to smoke methamphetamine in plain view, and a search warrant was obtained to search the premises and the outbuildings. When executing the search warrant, officers found bottles used in the manufacture of methamphetamine in one of the outbuildings. The search warrant was issued five hours after Banks sold methamphetamine to the confidential informant, and the house was not kept under surveillance between the sale and the execution of the search warrant based on unpaid child support (case no. 2010-R-0243).
The sale of methamphetamine case file was received by the Coweta County District Attorney’s Office from the West Georgia Drug Task Force on March 19,2009. On May 11,2009, the State filed an accusation in case no. 2009-R-445 against Banks on the charge of sale of methamphetamine, and Banks entered a guilty plea pursuant to Alford
In his sole enumeration of error, Banks argues that the events giving rise to his guilty plea and the subsequent indictment arose from one continuous course of conduct and, thus, subjected him to two prosecutions in violation of his constitutional and statutory right to be free from double jeopardy. Accordingly, Banks argues, the trial court erred in denying his double jeopardy plea in bar.
Georgia’s statutory bar to successive prosecutions, the procedural aspect of double jeopardy, is codified in OCGA § 16-1-7 (b), which requires the State to prosecute crimes in a single prosecution “[i]f the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court.”
We first address whether the prosecuting attorney had knowledge of the charges arising from the execution of the search warrant at the time of Banks’ plea. The Supreme Court of Georgia in Baker v. State held that OCGA § 16-1-7 (b) applies “only to such crimes which are actually known to the prosecuting officer actually handling the proceedings.”
The Coweta County District Attorney’s Office prosecuted Banks in both cases. The district attorney’s office received the case file of the sale of methamphetamine case on March 19, 2009, an accusation charging Banks with that offense was filed on May 11, 2009, and Banks pled guilty to that charge on August 17, 2009. The district attorney’s office did not receive the case file regarding the execution of the search warrant until September 18, 2009, after the plea hearing had already taken place.
Appellant points to the transcript of Banks’ plea hearing as affirmative proof that the prosecuting attorney was aware of the events giving rise to the subsequent indictment. This transcript, a portion of which was read aloud during the plea in bar hearing,
[a]t most, the evidence relied on by [Banks] shows the prosecutor’s subjective knowledge of the other crimes. [11 ] We therefore are compelled to uphold the trial court’s denial of [Banks’] double jeopardy plea in bar on the basis that [Banks] did not affirmatively show the prosecutor actually knew of the other crimes when he prosecuted the [first offense].12
In light of this ruling, we need not reach the issue of whether the crimes charged against Banks arose from the same conduct.
Judgment affirmed.
Notes
State v. D’Auria,
Supra.
(Emphasis supplied.)
Wilson v. State,
Id.
(Citation and punctuation omitted.) Dean v. State,
(Citation and punctuation omitted; emphasis in original.) Baker v. State,
(Citations and punctuation omitted.) Zater v. State,
Although the State informed the trial court that it would supplement the record with the transcript of Banks’ plea hearing in case no. 2009-R-445, it does not appear that this was done. Accordingly, this transcript is not in the record properly before us.
Further, whatever the prosecutor knew about these other pending charges, nothing in the record shows when the prosecutor learned of such facts, which is important since the statute requires that the prosecutor join all such claims known to the prosecutor at the time of commencing the prosecution. If the prosecutor learned of new charges after indictment, double jeopardy under this Code section would not apply.
(Citations omitted.) Turner v. State,
Barlowe v. State,