Dean v. State, 449 S.E.2d 158

Dean v. State

449 S.E.2d 158

Ga. Ct. App.

1994

Check Treatment

Ruffin, Judge.

Appellant was charged in two separate Georgia Uniform Traffic Citations with weaving over the roadway and driving under the influence. He filed special and general demurrers to the citations on the ground that they were fatally defective because they failed to identifj the specific criminal conduct and statutory provisions allegedly vio lated by appellant. The following week, appellant’s arraignment anc trial commenced in the Probate Court of Whitfield County. Appel lant’s triаl counsel interrupted the testimony of the first witness t< *769assert the demurrers. After hearing argument of counsel, the court announced that it would take the matter under advisement until July 13,1993. However, on June 21,1993, the court, sua sponte, bound the case over to superior court without ruling on the demurrers. Contemporaneously with the entry of the “Bind-Over Order,” appellant filed a written objection to the bind-over. Thereafter, a new accusation was filed in the superior court charging appellant with driving under the influence. Appellant then filed a plea of former jeopardy, which the superior court denied. The court concluded that by binding the case over to the superior court, the probate court, in еffect, agreed with appellant’s special demurrers and since proper accusations were not filed, the probate court proceeding was a nullity. Therefore, the prosеcution could proceed in superior court. This appeal followed.

The superior court held, essentially in accordance ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍with OCGA § 16-1-8 (d) (1) and Roberts v. State, 171 Ga. App. 131 (1) (319 SE2d 42) (1984), that the prosecution of appellant in suрerior court was not barred because the probate court lacked jurisdiction over thе appellant since a proper accusation was not filed. However, the instant cаse is not a situation in which no accusation was filed at all, as was the case in Roberts. Nor are the citations deemed “improper” such that a prosecution based thereon would be a nullity since the defects cited by appellant in his demurrers were amendable. See Gilbert v. State, 17 Ga. App. 143 (86 SE 415) (1915); Goldsmith v. State, 2 Ga. App. 283 (58 SE 486) (1907). “It is well-settled that when an indictment or accusation charges a crime which is capable of being committed in more than one way, but fails to charge the manner in which ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the crime was committed, the indictment or accusation is subject to special demurrer because a defendant is entitled to know how the Statе will prove the crime charged. [Cits.]” Scott v. State, 207 Ga. App. 533, 535 (428 SE2d 359) (1993). Thus, contrary to the findings of the superior court, the probate court had jurisdiction over the case, and the probate court proceeding was not a nullity. Aсcordingly, we must determine whether the appellant was placed in jeopardy in the probate court.

| The trial court held and the State argues that appellant waived ¡the right to assert dоuble jeopardy because the probate court proceeding was terminated in resрonse to appellant’s demurrers.

I “No person shall be put in jeopardy of life or liberty morе than pnce for the same offense except when a new trial has been granted ¡after conviction or in case of mistrial.” Ga. Const, of 1983, Art. I, Sec. E, Par. XVIII. “A prosecution is barred if the accusеd was formerly ¡prosecuted ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍for the same crime based upon the same material facts, if Jsuch former prosecution .. . [w]as terminated improperly ... in a trial Before a court without a jury, after the first witness was sworn but Before findings were rendered by the trier of facts. ...” OCGA § 16-*7701-8 (a) (2). Termination is not improper if thе “accused consents to the termination or waives by motion to dismiss or other affirmative actiоn his right to object to the termination.” OCGA § 16-1-8 (e) (1).

Decided October 5, 1994. Ralph M. Hinman III, for appellant. Jack O. Partain III, District Attorney, Bert M. Poston, Jr., Assistant District Attorney, for appellee.

While it is true that the termination ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of the probate court trial occurred subsequent to appellant’s demurrers, it does not necessarily follow that the bind-over to superior court was “in response” to appеllant’s actions since the probate court judge failed to rule on the demurrers and appellant sought from the probate court a dismissal of the citations and not merely a transfer to a different court for further prosecution.

Nonetheless, the probate court trial was terminated аfter the first witness was sworn and before findings were rendered by the trier of fact, and appellant, having fаiled to obtain a ruling on his special demurrer before the start of the trial, waived his right to challenge the citations and therefore submitted to be tried under the citations. See Chambers v. State, 22 Ga. App. 748, 753 (97 SE 256) (1918); OCGA § 17-7-113. Thus,, appellant was placed in jeopardy in the probate court trial. Thereafter, when the trial was terminated, аppellant neither consented to the bind-over to superior court nor did he perform any аffirmative ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍act by which he waived his right to challenge the court’s sua sponte order. Therefore, under OCGA § 16-1-8, the probate court improperly terminated the trial, and the superior court erred in denying appellant’s plea of former jeopardy.

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.