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Ellis v. State5/20/1992
one count and where a defendant stands convicted of a charge and is later prosecuted for other crimes arising out of the same incident. The Court distinguished Johnson from Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), the principal case relied on in Grady. It is the same distinction that I would draw here: where multiple counts are charged in a single prosecution a plea to one or more of the counts does not bar further prosecution on remaining counts, but if a prosecution has been completed prior to the filing of subsequent charges the principals of double jeopardy apply.
Because the principals established in Grady do not have any application in this case, I see no reason to go into the extensive discussion of the rules against successive prosecutions. Without a factual basis for the issue in the present case, the portion of the court's opinion is merely dicta without precedential value.
Therefore, I concur in the result reached by the majority but for the reasons stated herein.
LUMPKIN, Vice Presiding Judge, specially concurring.
I compliment the Court on its thorough analysis of the issues presented regarding the constitutional protections against double jeopardy and join in the decision rendered. The correctness of the decision is reflected in the recent United States Supreme Court decision in United States v. Felix, ___ U.S. ___, 112 S.Ct. 1377, 118 L.Ed.2d 25 (1992). The Court has also appropriately noted that issues of double jeopardy must be analyzed based on whether the case involves multiple punishments in the same prosecution or successive prosecutions arising from the same acts. Too often lawyers and courts fail to discern the appropriate rule of construction because they fail to first determine which protection is involved, based on the facts of the case. Thus, the analysis may be skewed when attempts are made to analyze a successive prosecution case based on case law defining multiple punishment restrictions, and vice versa. The Court in this opinion has sought to provide the bench and bar with a succinct compendium of authority detailing the analysis which must take place in determining the applicable authority based on the facts presented.
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