Gary Stephen Garrett appeals the trial court’s denial of his motion for plea in bar on the ground of double jeopardy in connection with a charge of serious injury by vehicle (OCGA § 40-6-394). “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.” (Citation and punctuation omitted.)
Strickland v. State,
The underlying facts in this case are not in dispute. On August 10, 2008, Garrett drove under the influence of alcohol (OCGA § 40-6-391 (a) (5)), had an open container of alcohol (OCGA § 40-6-253) and failed to yield the right of way (OCGA § 40-6-71), resulting in an automobile collision. He pled guilty to these state violations in the Municipal Court of Hiram, Georgia on September 26, 2008, and he was sentenced to twenty-four months on probation, two days to serve in the Paulding County jail, and $1,046 in fines, surcharges and other costs.
Garrett stipulated in the trial court that police and prosecutors were unaware at the time of this plea that the collision had resulted in a serious injury to anyone. Later, when police were notified that Terry Powell had been seriously harmed in the wreck, the case was referred to the Paulding County district attorney. A grand jury subsequently indicted Garrett on the charge of serious injury by vehicle. The indictment alleged that Garrett caused bodily harm to Powell, by rendering his ankle useless, “through a violation of OCGA § 40-6-391, Driving Under the Influence of Alcohol.”
Garrett filed a plea in bar to the indictment on the ground that he had already pled guilty and been sentenced on charges arising from the same set of facts. Contrary to the State’s assertion on appeal, Garrett’s plea in bar alleged double jeopardy violations under both the United States Constitution and Georgia statutory law, OCGA § 16-1-7. At the plea hearing, however, Garrett abandoned his claims under state law and instead relied solely upon the substantive protections embodied in the Fifth and Fourteenth Amendments of the United States Constitution. 1 After hearing argument from the parties, the trial court denied the plea in bar, relying upon OCGA §§ 16-1-7 (b) and 116-1-8.
“The double jeopardy clause of tfhe Fifth Amendment to the United States Constitution provides that no person shall be subject for the same offence to be twice put in jeopardy of life or limb.” (Punctuation omitted.)
Strickland,
In determining whether successive prosecutions constitute double jeopardy under the United States Constitution,
“[t]he established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States,284 U. S. 299 , 304 ((52 SC 180, 76 LE 306)) (1932): ‘[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. . . .’ ” Brown v. Ohio,432 U. S. 161 , 166 ((97 SC 2221, 53 LE2d 187)) (1977).
Baker v. State,
Thus, when “conviction of a greater crime . . . cannot be had without conviction of the lesser crime, . . . the Double Jeopardy
Clause bars prosecution for the lesser crime after conviction of the greater one.”
Harris v. Oklahoma,
The United States Supreme Court has “recognized that the
Blockburger
test focuses on the proof necessary to prove the statutory elements of each offense, rather than on the actual evidence to be presented at trial.”
Illinois v. Vitale,
In this case, proof that Garrett was guilty of DUI under OCGA § 40-6-391 is a required element for convicting him of serious injury by vehicle under OCGA § 40-6-394. And while proof of serious injury by vehicle also requires proof of an additional element, i.e., bodily harm, the DUI charge included no element that is not also contained in the crime of serious injury by vehicle. Accordingly, the
Blockburger
test is not met, and the subsequent indictment for serious injury by vehicle violates the federal Double Jeopardy Clause. See
Cox v. State,
We decide this case “solely on the federal constitutional ground. Defendant also raised the state constitutional provision and OCGA §§ 16-l-7[,] 16-1-8 in his plea of former jeopardy. However, he expressly abandoned the statutory grounds at the hearing.”
Henderson,
Judgment reversed.
Notes
We note that under federal law, the State bears the burden of showing by a preponderance of the evidence that the two prosecutions involve separate crimes, once the defendant has met his initial burden of proving that his claim of double jeopardy is not frivolous. United States v. Benefield, 874 F2d 1503, 1505 (11th Cir. 1989).
This constitutional test is also codified under OCGA § 16-1-8 (b). See
McCannon v. State,
Indeed, the Georgia appellate courts have held that OCGA § 16-1-7 (b) and portions of OCGA § 16-1-8 (b), upon which the trial court relied, were intended to go “beyond constitutional double jeopardy to afford protection from repeated prosecutions, ... ‘. . .
'when the defense of double jeopardy is not available
and yet the accused should not be worn down. . . .’ ” (Emphasis supplied.)
McCannon,