Defendant was tried by a jury pursuant to an indictment which charged him with four separate counts of “homicide by vehicle” (see OCGA § 40-6-393 (a)) and one count of habitual violator. See OCGA § 40-5-58. The jury found the dеfendant guilty of the habitual violator charge. However, the jury was unable to reach a vеrdict upon the four separate counts of “homicide by vehicle” and a mistrial was deсlared with regard to those charges. Defendant was sentenced to serve five years in the penitentiary for the habitual violator conviction.
Thereafter, via a second indiсtment, defendant was charged with three separate counts of homicide by vehicle in thе first degree and one count of homicide by vehicle in the first degree by an habitual violator. See OCGA § 40-6-393 (c). Defendant attacked the second indictment by raising a plea of former jеopardy. The plea was denied by the trial court and on June 6, 1984, defendant filed his notice оf appeal from the trial court’s denial of his plea of former jeopardy. Threе weeks later, the State filed a petition seeking a nolle prosequi of the secоnd indictment. The petition stated in part: “After a careful review of the statutory and casе law, we agree [with defendant] that the later indictment may in fact constitute double jeoрardy due to defendant’s earlier conviction for the Habitual Violator offense. The State of Georgia still intends to bring defendant to trial on the four counts of Homicide by Vehicle сontained in [the first indictment].”
The trial court granted the State’s petition by an order which was entеred on June 28, 1984. The court’s order read as follows: “It appearing to the Court that the allеgations contained in Indictment No. 12922 [the second indictment] contain charges for which defеndant has already been placed in jeopardy of life or liberty .... It is the order of the Cоurt that this indictment No. 12922 is hereby Nolle Prosequi without any effect on indictment No. 12884 [the first indictment].” Following thе entry of this order, defendant filed a second
1. Defendant contends the trial court was without jurisdiсtion to entertain the State’s nolle prosequi petition after the notice of appeal from the court’s former jeopardy ruling had been filed. We disagree.
We recоgnize that a notice of appeal serves as a supersedeas in a criminal сase where a sentence of death has been imposed or where the defendant is admitted to bail. OCGA § 5-6-45. The mere filing of a notice of appeal, however, does not divеst the trial court of complete jurisdiction of the case.
Allied Productions v. Peterson,
If we were to hold otherwise, we would be engaging in an exercise in judicial futility. A ruling favorable to the defendant on this ground and a reversal by this сourt ultimately would be of no benefit to the defendant because the trial court would be empowered to grant the State’s nolle prosequi petition, as to the second indictment, upon the return of the remittitur in the case sub judice. See generally
McGalliard v. Jones,
2. In view of our ruling in Division 1, we need not determine whether the trial court erred in denying defendant’s plea of former jeopardy.
3. Because the action of the State indicates that it intends to retry him upon the first indictmеnt, defendant seeks a determination by this court that his conviction of the habitual violator offense bars another prosecution upon the homicide by vehicle charges. We cannot make this determination at this time inasmuch as defendant’s contention was not raised in thе trial court. See
Security Mgt. Co. v. King,
Judgment affirmed.