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Hooker v. State9/23/1999
FIRST DIVISION
Defendant Hooker appeals from the Superior Court of Emanuel County's order denying his plea of former jeopardy. Pointing to OCGA § 16-1-7 (b), he contends that his misdemeanor convictions in the State Court of Emanuel County , bar any "successive" prosecution in the Superior Court of the misdemeanors and of two aggravated assault charges (OCGA § 16-5-21) not tried in the State Court.
Held:
The evidence adduced at the hearing upon defendant's plea of former jeopardy shows that State Trooper Wayne Hutchinson was called to investigate an automobile accident which occurred in the early morning hours of Saturday, November 7, 1998 on U. S. Highway 1 in Emanuel County. As a result of his investigation, Trooper Hutchinson issued four traffic citations charging defendant with the misdemeanor counts tried in State Court and two counts of aggravated assault by ramming a truck occupied by the driver Fred Stivender, II and his nine year old son. On their face, these traffic citations indicate that they were issued contemporaneously at 5:30 a. m., November 7, 1998, and relate to crimes arising from the same accident.
Shortly after he issued the traffic citations, Trooper Hutchinson prepared an incident report on the accident and submitted it to the district attorney's office, attaching the traffic tickets, to obtain an arrest warrant as to the aggravated assaults . Such warrant was issued on November 10, 1998.
Sheriff J. Tyson Stephens testified that he delivered the incident report and the traffic citations to the district attorney and advised him that a felony charge was among the tickets. In further testimony, Sheriff Stephens indicated that he spoke to the defendant in jail the morning after the accident thinking he was from out of town. In "a compassionate measure" in order to minimize the time the defendant would be without his driver's license and help save his job, Sheriff Stephens advised him to complete an alcohol treatment program quickly and plead guilty in State Court to the misdemeanor charges. Additionally, Sheriff Stephens testified that in furtherance of his efforts to help defendant, he asked a secretary in the district attorney's office to send the misdemeanor citations against defendant to State Court. His testimony also indicated that the secretary did so without conferring with the District Attorney or any of his assistants.
On December 12, 1998, defendant, pro se, pleaded guilty in the State Court of Emanuel County to each of the misdemeanors. The court accepted such pleas and imposed sentence thereon. Sheriff Stephens did not inform the State Court of the pendency of the felony charges in Superior Court because he believed that the District Attorney would prosecute them separately.
On January 29, 1999, the grand jury for Emanuel County indicted defendant for the misdemeanors to which he had pleaded guilty in State Court and two counts of aggravated assault, one as to the driver of the vehicle defendant is alleged to have rammed, Mr. Stivender, and the other as to his son. On February 19, 1999, after waiving formal arraignment on the indictment, defendant pleaded not guilty, and, through newly retained counsel, filed his plea of former jeopardy. At its April 9, 1999 hearing thereon, the Superior Court of Emanuel County and the parties agreed that the misdemeanors to which defendant's guilty pleas had been accepted were barred from further prosecution by former jeopardy. Through apparent administrative error, however, the Superior Court's order in the record denied defendant's plea of former jeopardy as to all the charges.
In State v. McCrary, 253 Ga. 747, 748 (325 SE2d 151), the Supr
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