Griеr and Lucear were indicted on charges of felony murder and aggravated assault, in connection with the death of Dеon Dorsey. 1 They were tried and found guilty, and contend that after the trial court granted them new trials because of the Statе’s failure to prove venue in the first trial, the trial court erroneously denied their pleas of former jeopardy. For thе reasons that follow, we affirm the trial court’s determination that no former jeopardy exists.
1. Grier and Lucear argue that to subject them to trial at this point violates the proscriptions against double jeopardy found in the Fifth and Fourteenth Amеndments to the United States Constitution, and in Art. I, Sec. I, Par. XVIII of the 1983 Georgia Constitution. They argue that as proper venue is a faсt that must be proved by the State beyond a reasonable doubt, see
Jones v. State,
The Georgia Constitution requires that venue in all criminal cases must be laid in the county in which the crime allegedly was *431 committed. Ga. Const, of 1983, Art. VI, Sec. II, Par. VI. See also OCGA § 17-2-2. And venue must be proved beyond a reasonable doubt when a defendant pleads not guilty and is put on trial. Jones, supra at 902 (2). But venue is not an element of the offense and does not prove or disprove the defendant’s guilt. Id. at 904 (4). “Reversal due to improper venue is not a resolution of some or all of the elements of the offense charged.” (Citation and punctuation omitted; emphasis in original.) Id.
Although Grier and Lucear contend that
Burks v. United States,
The failure to establish venue does not bar re-trial in a court where venue is proper and proven. [Cits.] This is true for two reasons: (1) If a defendant is tried in the wrong venue, that trial court lacks jurisdiction of the offense so that no jеopardy attaches. [Cit.] And, (2) evidence of venue does not go to the guilt or innocence of the defendant; insufficient evidence of venue is a trial error that does not bar re-trial under Burks v. United States,437 U. S. 1 (98 SC 2141, 57 LE2d 1) (1978) and its progeny.
Bradley v. State,
Questions of sufficiency of the evidence under the standard of Jackson v. Virginia, supra, and whether the State has met its burden to prove venue, are separate. See Bradley, supra at 741 (1), (2). As this Court stated in Jones, supra, venue is a jurisdictional fact that must be proved by the State, but venue does not invoke double jeopardy concerns. Jones, suprа at 904 (4). Consequently, the grant of a new trial here “is not a reversal due to ‘insufficient evidence’ within the ambit of Burks and its progeny.” (Citation omitted.) Id. at 905 (4).
2. Grier and Luceаr also argue that OCGA § 16-1-8 (d) (2) prohibits any retrial. OCGA § 16-1-8 provides expanded protection to criminal defendants facing retrial, bеyond that provided by the constitutional bars to double jeopardy. See
State v. Estevez,
OCGA § 16-1-8 (d), in its entirety, reads:
A prosecution is not barred within the meaning of this Cоde section if:
(1) The former prosecution was before a court which *432 lacked jurisdiction over the accused or the crime; or
*432 (2) Subsequent proceedings resulted in the invalidation, setting aside, reversal, or vacating of the conviction, unless the accused was thereby adjudged not guilty or unless there was a finding that the evidence did not authorize the verdict.
Thus, under the language of the statute, retrial may occur if either of the two situations in subsection (d) exists. Grier and Lucear contend that the failure to prove venue means that “the evidence did not authorize the verdict” under subsection (d) (2), and therefore the situation set forth in that subsection does not exist, and subsection (d) (2) does not permit retrial. But that argument ignores the fact that retrial is рermitted under OCGA § 16-1-8 (d) if either of the situations in its subsections exists. And under OCGA § 16-1-8 (d) (1), a subsequent prosecution is not barred if the “former prosecution was before a court which lacked jurisdiction over the accused or the crime.”
A court in which venue is not proved does not have jurisdiction over the crime. “ ‘(V)enue in criminal cases is a matter of jurisdictional fact, and like every other material allegation in the indictment must be proved beyond a reasonable doubt.’ [Cits.] Where venue is not established by the state, any ensuing judgment is void, although reversal of a conviction on this basis does not prevent retrial in a court where venue is proper and proven. [Cits.]”
Trogdon v. State,
For purposes of the trial court’s jurisdiction, therе is no distinction between the situation here, in which the State failed to prove venue, and the situation in which a defendant is tried in a venue that is incorrect because the crime was not committed in that county. It is the State’s burden to establish the jurisdictiоnal fact of venue, and when it fails to do so, venue is lacking. See Trogdon, supra. Thus, the trial court lacks jurisdiction over the crime and OCGA § 16-1-8 (d) (1) applies.
Judgments affirmed.
Notes
Dorsey was killed on April 16, 1996. On May 21, 1996, a Fulton County grand jury indicted Grier and Lucear on one count of felony murder while in the commission of aggravated assault, six counts of aggravated assault with a deadly weapon, and two counts of aggravated assault with intent to rob. Grier and Lucear were tried before a jury September 8-11, 1998, and found guilty of all charges. They wеre each sentenced to life in prison, and each filed a motion for new trial. Lucear’s motion for new trial was granted on February 5, 2001; Grier’s motion was granted on March 3, 2001. Lucear filed a plea of former jeopardy on May 29, 2001, and amended it on May 31, 2001. Grier filed a plea of former jeopardy on May 31, 2001. The trial court denied both pleas of former jeopardy on June 22, 2001. Grier filed a notice of appeal from that denial on July 17, 2001, and Lucear filed his notice of apрeal on July 19, 2001. Both cases were docketed in this Court on January 10, 2002, and argued on April 16, 2002.
On the motions for new trial, the trial court determined that, in light of this Court’s decision in Jones, supra, the State failed to establish venue, and that each defendant should have a new trial. The propriety of this ruling is not before this Court.