McCANNON v. THE STATE
40497
Supreme Court of Georgia
DECIDED MAY 1, 1984.
252 Ga. 515
GREGORY, Justice.
We do not agree that the father rather than the mother should reap the benefit of the grandmother‘s benevolence. It was intended by the parties that the mother provide child care for the younger child, and that the father pay for it. She provided the child care and he paid the amount agreed upon for this purpose.
This situation does not meet the “unusual” circumstances where the support required under the decree has been provided in another form by the father. Thus, we conclude that the trial court erred in granting $1075 to the father in this case and in retroactively awarding the father the $108.27 held in escrow.
Judgment affirmed in part; reversed in part. All the Justices concur.
DECIDED APRIL 25. 1984.
Sartain & Carey, W. Allan Myers, for appellant.
David A. Fox, for appellee.
GREGORY, Justice.
Terry McCannon was indicted in Oglethorpe Superior Court on two counts for aggravated assault upon an officer. He filed a plea of former jeopardy relying on
The issue for decision on certiorari is whether the Georgia statutory double jeopardy provisions contained in
McCannon was stopped while operating a car on a public highway by two state patrol officers on December 13, 1981. The indictment alleged one of the troopers leaned into the car and, while he was doing so, McCannon drove off, causing the trooper to fall to the highway, injuring him. Count two of the indictment alleged, as McCannon drove away, he ran over the other trooper‘s foot, injuring
The statement of facts filed by McCannon in the Court of Appeals indicates the DUI charge was dropped because the chemical test results were not positive. These facts also disclose that plea negotiations were begun by counsel for the defendant and the district attorney. A tentative bargain was reached in which McCannon agreed to enter a plea of guilty to possession of marijuana and join the armed forces. In exchange, the State would have the assault charges dismissed. McCannon was unable to join the armed forces, the district attorney was notified, and the agreement was not consummated.
On February 26, 1982, an accusation was brought in Oglethorpe Superior Court alleging misdemeanor grade possession of marijuana. The following May 18, the grand jury of Oglethorpe County returned the indictment charging two counts of aggravated assault upon an officer which commenced this case. There were two separate cases pending, which by statutory definition amounted to two separate pending prosecutions.
In 1968 the General Assembly enacted a new criminal code. Ga. L. 1968, p. 1249 et seq. Its scope was comprehensive. One chapter was designated, “Rights of Accused.” Ga. L. 1968, p. 1366. The particular sections we deal with in this case were part of this chapter under the subjects of (1) Multiple Prosecutions for the Same Conduct, and (2) The Effect of a Former Prosecution. The committee notes which follow Code Ann. § 26-507 indicate that
With the foregoing as a guide we outline the relative code section in a manner we believe clarifies the intention of the General Assembly:
- resulted in either a conviction or acquittal and:
is for a crime which involves the same conduct, unless - each prosecution requires proof of a fact not required on the other prosecution or
- the crime was not consummated when the former trial began.
We use a hypothetical example to demonstrate the intended application of these sections. Assume a defendant first raped and then, as a part of the same conduct or transaction,5 murdered the victim. There were separate witnesses to each crime, neither of whom witnessed the other crime. The district attorney prosecuted the defendant for murder, resulting in an acquittal. Then, for the first time, the district attorney discovered the other witness and learned of the rape. A second prosecution, this for rape, was begun. The question is whether the prosecution for rape is barred under the Code sections. Looking to
Turning to the case at hand we reach a different result. Clearly, both crimes were known to the district attorney at the time of the first prosecution. They were within the jurisdiction of a single court. They arose out of the same conduct or transaction. Thus, they come within the provisions of
We overrule Trimble v. State, 156 Ga. App. 9 (274 SE2d 10) (1980) and State v. Gilmer, 154 Ga. App. 673 (1) (270 SE2d 25) (1980). In both these opinions the court relied entirely on the third division of the section, which in our outline is (iii), without giving consideration to the second division (ii). The third division is traditional constitutional double jeopardy. The second division goes beyond constitutional double jeopardy to afford protection from repeated prosecutions, as the committee notes, supra, indicate, “... when the defense of double jeopardy is not available and yet the accused should not be worn down....”
Judgment reversed. All the Justices concur, except Marshall, P. J., and Weltner, J., who concur specially.
DECIDED MAY 1, 1984.
Andrew H. Marshall, for appellant.
Lindsay A. Tise, District Attorney, Barry G. Irwin, Assistant District Attorney, for appellee.
WELTNER, Justice, concurring specially.
I agree with the result reached in this case as it appears that when McCannon was sentenced for a misdemeanor, the prosecuting officer actually in attendance was fully aware of the pendency against McCannon of felony charges arising from the same conduct. Hence, the matter falls squarely within the language of
Properly construed, the statute should apply only to such crimes which are actually known to the prosecuting officer actually handling the proceedings (as here the case). This would obviate the possibility of a miscarriage of justice in cases where the commission of other crimes arising from the same conduct may not be within the actual knowledge of the prosecuting officer actually handling the prosecution.
I am authorized to state that Presiding Justice Marshall joins in this special concurrence.