*1 73254. POWE v. THE STATE.

(352 SE2d

Banke, Chief Judge. appeals statutory his on the

Powe the denial of bar based (b). double 16-1-7 jeopardy provisions OCGA 29, 1986, On April Georgia patrolman stopped an automo- appellant, a traffic bile driven and issued citation stop, him improper change. for an lane As a result of the making searched, suspected marijuana the vehicle was large and a amount trunk, was seized from later resulting indictment felony trafficking marijuana. After the car had been pounded office, at the sheriff’s gun, it also found to contain a with felony the result that Powe was also of posses- indicted offense sion of a firearm during felony. commission 7, 1986, May counsel, Daniel, 6 or J. Robert went to Sikes, the office John Assistant Solicitor State Court of Bibb County, disposition discuss of his client’s traffic Daniel told Sikes that charged his client had been with making improper town, that, lane he change, that lived out of because he had been bond, post unable to he in jail had remained since the For offense. reasons, those dispose Daniel asked Sikes to of the traffic violation expeditiously. pending felony Daniel made no mention of the for trafficking in marijuana possession firearm, and felonious al- though he was well charges; those and Sikes agreed place calendar, the matter on the next which was scheduled for 1986.

Sikes testified that Powe’s traffic ticket had been returnable state court for 1986. He if pre- stated that Daniel had not upon expedite case, vailed him “jail felony list” reflecting business, would have been checked in the normal course of resulting in the transfer of the charge misdemeanor traffic court for in conjunction with the charges. He fur- that, ther yet stated because Powe’s traffic ticket had not been trans- to his channels, mitted office through normal administrative he affirmatively request be delivered there so as to him to enable prepare an entry affidavit and accusation for the the fol- lowing day.

On May 1986, Powe appeared Taylor before the Honorable Phillips, Judge County, Court of Bibb pleaded guilty to making an improper change. Scarbary Assistant Solicitor Otis plea, handled the based on understanding that Sikes and Daniel had reached an agreement on nor Scarbary the case. Neither Sikes was aware of the pending felony present charges, and Daniel was not in court. In the course of questioning appellant plea, about inquired if he had any pending, other cases to which Powe had a case acknowledged that he pay him to orally sentenced signed plea, and the court

then ticket, appears on the no written “CC” Although costs. the notation signed, or filed. prepared, was ever judgment of conviction Solicitor entry plea, Assistant Within hours after day, that, previous paper Scarbary morning read in the *2 Shortly trafficking marijuana. in indicted Powe for grand jury had Judge Phillips to advise him thereafter, met with solicitor assistant following nota- Phillips entered the development, plea of “The above signature on the accusation: tion beneath Powe’s having foregoing case plea is and the hereby withdrawn entered, hereby withdrawn the same is improvidently been is superior the within accusation being transferred to the court solicitor, This 13th prossed assistant S.C.B.C. nolle on motion tunc, 8, 1986.” day May pro nunc in supe- in Thereafter, plea bar on behalf of Powe Daniel filed that, court, “by plea to the mis- allowing” contending rior transaction, from the same the state arising demeanor traffic offense felony indictment. trial court right prosecute had lost its bar, complete in truth had been con- finding denied the the latter had been author- judge cealed from the state court and that ized, circumstances, plea. ap- appellant’s under the “withdraw” peal, concluding erred in Powe contends that trial court prosecution a bar to further proceedings state court did not constitute (b). Held: contemplation of within the OCGA 16-1-7 his Although characterized action as judge the state court is court did not actu- plea, “withdrawal” of Powe’s it evident that the his ally anything simply prior reversed decision “withdraw” but 604) State, (281 Curry v. In 248 Ga. 185 SE2d accept plea. (1981), held that oral declaration as what Supreme our Court “[a]n court; the sentence shall is the sentence of the the sentence be that “the signed by judge is. The Court thus concluded [Cit.]” was within the oral declaration as to what the sentence would be any at time before was breast the court and could be increased formally or service of the sentence was judge entered before commenced.” Id.

Certainly, required case, in appellant’s plea present particularly of the devi light attempt by manipulate judicial process ous counsel exploiting prosecutor’s ignorance pending the state court McCrary, in State v. charges. Supreme As was stated Court (325 151) (1985), system, 253 Ga. 747 SE2d “one who misuses state, successfully through no not be able to raise fault should plea in his ...” See also manipulation. bar which arises because of (341 288) (1986). State, (1) Al Collins v. App. SE2d 177 Ga. 758

431 Court, v. though McCrary Supreme relying on McCannon 413) (1984), State, (315 determined that the ac- 252 Ga. 515 SE2d ceptance of a defendant’s misdemeanor constituted bar to transaction, on prosecution felony charges arising same prosecuting with single decision was based on the fact that a officer offenses, i.e., attorney, jurisdiction over all the an assistant district had dis- made an “election” to allow the misdemeanor offenses to be posed separately requiring than all the offenses to be bound rather McCannon, all the Similarly, supra, over to knowledge court and were thus within the accepted the district at the time the the misde- meanor case,

In present undisputed while it that the district attor- ney’s knowledge charges pending against office of all cannot, circumstances, such reasonably under the be court, puted to the can assistant solicitor of state nor the district deemed, attorney’s reasonably McCrary, supra, office to have made an disposed separately. election to allow the State, (336 (1985). See Webb v. Ga. App. SE2d More- over, requesting it was the action of the expedited defense counsel prevented treatment of his client’s case in which the solici- *3 from learning felony charges tor prior existence two to the arraignment. attorney’s clearly The defense in actions this case constituted intentional of manipulation process and misuse the which should not be condoned.

Apparently foreseeing the a possibility situation such as the us, Weltner, one before in special Justice in McCan- concurrence non, construed, following made the “Properly observation: [OCGA § (b)] 16-1-17 apply only actually should to such are crimes which known to prosecuting actually officer handling proceedings (as case). here the This would possibility miscarriage obviate justice in cases where commission of other crimes from arising the same may knowledge conduct be within actual prosecuting actually officer handling prosecution.” Id. at 519. While it bemay impute reasonable to prosecut- of one ing office, officer working to others in the same it is not to reasonable so entirely separate do where two prosecuting offices and are involved where deliberately defense counsel has to exploit set out the situation.

We hold that not required was guilty plea and that Powe’s did attempt enter such not, itself, prosecution meaning constitute a former within the (b). OCGA 16-1-7 It follows that the trial court did not err in denying in bar. Judgment Deen, McMurray, J., J., Pope, P. Carley, P. affirmed. Benham, JJ., Deen, J., J.,

and Pope, spe- concur. P. and also concur J., J., Sognier, Birdsong, P. J., specially. dally. Beasley, concurs dissent. concurring specially.

Beasley, Judge, out important point and believe agree majority with the solicitor or citation to alert the nothing was on the traffic that there in the charge” defendant said was “other the court that Also, any way with traffic superior court was connected post and unable to bond was out of town defendant’s hurrying the solicitor for given reason defendant’s counsel either, anyone, That alert charge disposition. would not traffic were, if related. they or might charges, there be other there Judge Presiding Deen and am authorized state that Pope special join concurrence.

Birdsong, Judge, dissenting. Presiding the facts show that Powe majority opinion,

As indicated patrolman state traffic stopped by highway was ultimately resulting in the of more proper change, disclosure car a briefcase pounds than 100 firearm marijuana was prepared. A was The information also the car. traffic citation County of Bibb forwarded Court (in- offense, appropriate, if and the felonies forwarded traffic deemed violation) county. On to the court of the cluding the traffic 6, 1986, attorney’s office a condemnation the district acts. was ac- property belonging to Powe used felonious It repre- attorney district the state’s knowledged by the assistant as existence of the traffic offense as well sentative the felonies. representing approached the solici- inquired of-

tor the state court and the status of traffic appears procedur- fense in the court. the traffic ticket had not It ally progressed through administrative channels to the state counsel, were made Because of the interest evinced efforts in- expedite processing of the traffic offense because Powe is no contention either carcerated and had made bond. There *4 by any mention was the state court’s solicitor nor Powe’s counsel that pending charges made of the in the court as the charges. expedited prepared

By an accusation was However, only lane showing changing the offense. candidly presenting by was conceded the assistant solicitor the case quite the he Powe unusual because state court that found the case simple ordinarily jail. when traffic violator would not be Therefore simple the for the assistant solicitor saw the accusation proper special inquiry pre- change, clerk made who he pared the circumstances of the because accusations as to was the solicitor had directed He assured that incarceration. inquiry. expedited disposition because made the day judge presented the case to the the state next when he him court, as well as overheard conversation that made the solicitor why as to the unusual circumstances court have concern as simple Apparently jail traffic Powe was in on a violation. court seeking for some was to find out if there was a reason for a hold other pending by Powe had another case crime. When informed that he orally judge court, from the another announced sentence bench pay appears It that the Powe the assistant solicitor superior prosecutor for court costs. Powe was sentenced fine represented the State assistant solicitor for state court and initially appeared representation. undisputed without It is drug-related charges unaware in the was my opinion, by But in the concern court. it is evidenced presents controlling question and the trial court that by communicating for decision this court: Should the burden of to the charge origin nature and before the state (or court) higher upon unrepresented upon court an defendant or legal representatives admittedly the the state who

implications of the bifurcated trials? believe the burden should upon party implications who realizes bifurcated ready and one has who access to the channels of informa- upon unrepresented honestly fully tion and an defendant who and (and pending charge informs the solicitor and the trial of a already officials). by answer to the concern both evidenced those spite by flag warning In of the obvious red manifested the ad- prosecutor inquiry court, mitted concern of the no was made judge possible the trial or the solicitor as to the connection between charge pending Espe- the traffic offense and cially is this concern in face of the further admission the assis- tant solicitor that he would never to a misde- felony charge arising meanor where a out of the same occurrence involved. That same must be attributed to the trial court unilaterally withdrawing in face of unusual action of plea by the court without notice to when the court became felony aware of appropriate am not hold face of an grounds jeopardy

motion to dismiss on of double that the appellant quired apparently law, who not versed in re- was only to forewarn the and the solicitor trial that there charge pending charge was another but that the arose out of the same transaction the traffic offense. my sufficiently placed

It is belief that the State on notice open appellant honest answer that all known *5 434 competent jurisdiction tried a court being were not

against Powe further in- point necessitating some one at least to the at trial or my opinion, Thus in problem. exposed have quiry that would language contained light in bar justified (315 McCrary State, SE2d v. 252 Ga. 515 McCannon v. (325 (320 567), State, affirmed 253 Ga. 747 App. SE2d 171 Ga. 585 151). SE2d argument of the apparently agrees with the majority

The orally announcing after its sentence still that the trial court because (a guilty form form all signed the sentence court), unilaterally guilty could withdraw cases in that the court separate I the verdict of plea. sentencing process believe power The jury. is found a court or guilty that verdict whether announced before orally or decrease a sentence but increase formally power sponte filed is the same sua withdraw as the acceptance to its without notice to guilty plea subsequent entered but surely power must be the defendant. to withdraw only at the minimum done de- initiated a defendant or hearing him an appropriate presence affording fendant’s and after I result proposed action. do not believe the withdrawal justifies criminal law will be enhanced the means or one applies maxim it is better that thou- thereby. The old still improper one conviction be sand freed than tolerated. rather trial judgment would reverse Sognier I am authorized to respectfully dissent. joins this dissent. December Decided

Rehearing denied December Daniel, appellant.

J. Robert Beinke, III, Attorney, Vernon R. Assis- Sparks Willis B. District Attorney, appellee. tant District