*1 listing, letter- telephone under the employ and alone, it or in the does of another. head or card business grant it insofar as erred in these cases
The trial court parties upon artifi- of these summary judgment denial might tax municipality requirement cial evaluation funeral di- embalming or practices profession one who City Atlanta. principal office recting and maintains Judgments Case Nos. No. 75346 in Case Been, reversed. 75344 and 75345 5, 1988 Rehearings 1, 1988 (case Turner, nos. appellant Spalten, E. Wilson Bavid 75343, 75344, II, II, appellees. Fred G. Edwards Orr
James W. (case II, II, no. Orr James G. Edwards W. Fred Turner, appellee. Spalten, E. Wilson H. Bavid THE v. SMITH. STATE Judge. Chief Birdsong, de- the state court
This is an from an order of procedural fendant/appellee’s plea grounds bar on the jeopardy. driving
Appellee by a accusation with four-count alcohol; percent or more driving under the influence of 0.12 accident; and, blood; scene of an weight of alcohol in the arraigned charges, all entered He on left center. trial, following a dis- guilty plea, requested not a bench trial. At counsel, an an- appellee’s cussion between the assistant solicitor appellee would the assistant solicitor nouncement made not and enter her entered withdraw percent or by driving DUI guilty to the second count of the fourth count of weight of alcohol in the and to blood pleas provident appellee center. The entered Contemporaneously, accepted. these two counts which the trial motion, solicitor, either elected to apparently of his own assistant scene of the accident. or moved to dismiss the election vice the assistant solicitor’s The trial hac dismiss, express finding made an or motion to thereafter appears It granting appellee’s to that effect his order from the the assistant solicitor fol- accurately lowing instructions causing solicitor the count of solicitor, thereafter, the scene to be dismissed. The wrote a letter to appellee’s indicating counsel that confusion existed case and rescheduling for a bench trial Appellee’s one week later. grounds procedural bar on the *2 (OCGA 16-1-8) granted. 16-1-7 and §§ Appellant asserts, error, as the sole enumerated the court erred granting the as appellee subject bar was not to succes- prosecutions (b) sive within the of meaning OCGA 16-1-7 and 16- (b). Appellant 1-8 scene, claims that Count the was not dis- by missed the subsequent prosecution court and therefore ap- the of pellee for this charge by was authorized law. case, the instant the trial judge written order
appellee’s plea in bar made findings detailed of fact. His in- (a) cluded following pertinent the findings, that: all offenses out arose (b) conduct; the same the assistant solicitor was aware of the of- charged fenses trial; (c) at the time the case was called to after the plead decided per- cent or by weight center, alcohol and the assis- tant solicitor decided to dismiss the the scene of the accident; (d) manipulation there no sys- (legal) misuse the tem the appellee/defendant to have the the (e) State; and, dismissed the accepted the hac vice judge the appellee/defendant’s change and the State’s dismissal of the leaving the scene charge. nothing We find tran- trial record or script justify setting findings aside of the trial of fact. judge’s Further, we are satisfied these written reflect that accepted the dismissal of the charge, the scene thereby gave it the same force and effect for as if this case it had express been his at ruling trial. (b) requires that all crimes arising from the same §
conduct and proper known to the prosecuting officer at time with, commencing prosecution jurisdiction single of a prosecuted must be together. OCGA subsequent bars a § prosecution for a different crime if such former resulted and, either a acquittal conviction or among other alternative re- quirements, is for a crime with which the accused have been should charged on the prosecution. State, former McCannon v. (315 State, 252 Ga. 413); (361 Baker SE2d SE2d 808) (OCGA applies only actually to such crimes which are prosecuting actually known to the proceedings). officer handling closely McCrary The facts of this case those resemble McCrary, (320 567), 171 Ga. sub nom. State v. SE2d affirmed McCrary 2 im- he but defendant’s accept the trial judge did posed bar, as well. In the case at sentence stated
appellee/defendant’s guilty investigation, but preliminary ordering he was sentence has not sen- case and in this judgment not rendered a written has ap- However, can be no appellee/defendant. there tenced to which the two offenses pellee/defendant has convicted of been in bench trial guilty plea acceptance pled guilty, he as Further, question regard to conviction. an act tantamount ordering that he announcement is settled in time the trial investigation, point as at this preliminary sentence clearly sentencing phase. had entered into meaning within “previous prosecution”
To constitute (b), defendant aris- one of the offenses “placed jeopardy” have been as to least sub- which the State is same as the offense for ing out conduct Cochran v. prosecute Compare him. sequently attempting to Martin, State v. rule, he person is in when general As competent regularly jurisdic- crime a court of is *3 commenced; com- purposes, a and for tion and trial has equivalent of deemed the jury mencement of a trial without be (3) (238 v. 315 begun one White 143 jury. open in guilty guilty A constitutes a confession of (6) (77 court and a waiver of trial. Griffin complaint or Accordingly, SE to an indictment acceptance by judge consti- entry with its on the record (b). tutes and 16-1-8 purposes for OCGA §§ See, CJS, Law, e.g., original 248. The Criminal unequivocally entered a reflects that discussed, as above and that this not, however, precise point which accepted. We need determine the say the case has jeopardy attached in this case. Suffice it to jeopardy has attached progressed sentencing phase, to the prosecution” has oc- determining “previous whether a (b). curred under Deen, Rehearing. Motion On carefully We record and affirm have re-examined entire appellee’s plea original decision. The trial order law, bar, which and conclusions of contains certain powers speaks for itself. The trial is vested with broad See, obligations e.g., to fulfill duties of office. (8); Moreover, (7); presumed it is 15-7-43. manner,
judge performs his and not ex- official duties a lawful See, Sims, 556, cess Lamb v. authority. e.g., cert. den. 449 U. error present S. 901. We find no the granting appellee’s plea rehearing
Motion denied. 11,
Rehearing 1, Stula, Solicitor, Jr.,
Ken Broome, appellant. Dean C.
Foy Horne, Jr., S. Stephens, Lawton E. for appellee. A. In the Interest
Birdsong, Chief Judge. This is an from judgment of the Baldwin Juvenile Court child, adjudicating H., order, A. delinquent. juvenile held “allegations petition of said have been sus- tained” and found A. H. “in to be a state delinquency.” The alle- gations petition aver that A. H. committed one count of bur- glary and four of entering counts automobiles. “ Appellant asserts as enumerated error evidence [t]he presented . . . was insufficient as a matter appel- of law to find that lant committed the delinquent alleged petition acts where there was no evidence establishing corpus any delecti petition.” offenses Our review the transcripts “reveal ample evidence from which rational trier of fact could conclude beyond a (Jackson reasonable guilty” Virginia, 443 U. S. 560)) SC LE2d of the offense of entering the Dupus, automobile of Harold with the intent to commit felony larceny offense, particular therein. As to this the evidence of record is every sufficient to exclude hypothesis reasonable *4 guilt. S., See re P. L.
However, we find that burglary offense of referred to delinquency petition had been withdrawn adjudicatory conclusion of the hearing, evidence is support
insufficient adjudication entered the au- tomobile of Sam Howell and the two automobiles of Ben Reeves as delinquency petition. L. C. State Ga., 702) (at best there circumstan- tial evidence upon presence attempted L. C.’s near break-in involved). that he might have been