State v. SteppState v. Stepp
- Reporters:
- , , ,
- Before:
- Miller, Blackburn, Ellington
Lekeisha Stepp filed a plea in bar, arguing that her convictiоns in the Recorder‘s Court of DeKalb County for violation of certain county ordinances regulating her responsibilities as a pet owner barred a subsequent prosecution in the State Court of DeKalb County upon two counts of misdemeanor reckless conduct pursuant to
On appeal from the grant or denial of a plea in bar, “[w]here the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, [as here,] we review de novo the trial court‘s application of the law to the undisputed facts.” (Punctuation and footnote omitted.) Barlowe v. State, 286 Ga.App. 133, 648 S.E.2d 471 (2007). The undisputed evidence shows that on August 29, 2007, Stepp‘s pit bull, which had escaped from hеr home, mauled a six-year-old child on her way home from school. Various citations thereafter issued аgainst Stepp for failure to control her pet under the DeKalb County animal control ordinance, and following a bench trial before the recorder‘s court on September 14, 2007, Stepp was convicted, among other things,1 of violating Section 5-2(a) thereof and sentenced to a suspended fine. Section 5-2(a) of such ordinance provides:
It shall be the duty of every owner of an animal to take all necessаry steps and precautions to protect other people, property, and other animаls from injury or damage resulting from such animal‘s behavior, including, but not limited to, chasing, biting, or otherwise jeopardizing the safety or welfare of the public, regardless of whether such behavior is motivated by mischievousness, playfulness, or ferocity.
On September 6, 2007, Stepp was arrested upon the charges of misdemeanor reckless conduct, the prosecution of which she now alleges is barred by double jeopardy.
The State maintаins the trial court erred in granting Stepp‘s motion claiming double jeopardy because the prosecution of the reckless conduct charges against her in superior court (i) exceeded the limited jurisdiction of the recorder‘s court and (ii) required proof of a fact unnecessary to establish a violation of the ordinance at issue before the recorder‘s court. We agree.
In the case of sucсessive municipal and State prosecutions, both the State and Federal constitutions apply as tо whether the second prosecution is barred by the first.
The constitutional prohibition is against being twice placed in jeopardy for the “same offense.” As the United States Supreme Court has stated, “The identity of offеnses is, therefore, a recurring issue in double jeopardy cases....” United States v. Ewell, 383 U.S. 116, 124, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966). “The established test for determining whether twо offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932): `The 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 S.Ct. 2221, 53 L.Ed.2d 187 (1977).
State v. Burroughs, 244 Ga. 288, 290(3), 260 S.E.2d 5 (1979), vacated on other grounds, Burroughs v. Ga, 448 U.S. 903, 100 S.Ct. 3044, 65 L.Ed.2d 1134 (1980).
Here, violation of the relevant county ordinance required proof of a fact that the misdemeanor recklеss conduct charges did not, and vice versa. Specifically, to prove the misdemeanor reckless conduct charges, the State was required to prove that Stepp‘s acts or omissions in controlling hеr pet constituted a “gross deviation from the standard of care” rather that ordinary negligence resрonsible for the conduct causing the harm at issue. See
Judgment reversed.
BLACKBURN, P.J., and ELLINGTON, J., concur.