 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Mathis v. State11/4/2005
comment to simple mistake.
In his brief responding to Mathis' motion for discharge and acquittal, the prosecutor admitted his mistake and maintained that he was not trying to subvert the outcome of trial because he was "extremely confident that [Mathis] was going to be convicted." See Williams v. State, 268 Ga. 488, 490 (491 SE2d 377) (1997) Mathis has not contravened the prosecutor's explanation by pointing to any evidence to the contrary, nor has he shown any evidence of improper motive or benefit to the State upon retrial of the case. Absent such evidence, the trial court was authorized to find, as it did, that the prosecutor's comments were not made purposefully to subvert double jeopardy protections. See Steward v. State, 251 Ga. App. 657, 658-659 (555 SE2d 33) (2001); Brinson v. State, 245 Ga. App. 479, 481-482 (538 SE2d 122) (2000) (where court found that the prosecutor simply made a mistake in his opening statement); Spradley, 242 Ga. App. at 342-343 (1); Haralson, 227 Ga. App. 118, 120-121 (1) (record supported trial court's finding that the prosecutor's intention was to convict the defendant, not to cause a mistrial).
Moreover, we do not find, as suggested by Mathis, that the prosecutor's conduct was "so blatant and so contrary to the most basic rules of prosecutorial procedure" as to give rise to a presumption of unlawful intent. See Wilson v. State, 233 Ga. App. 327, 329-330 (3) (503 SE2d 924) (1998). "The bar of double jeopardy is such an extreme sanction against the interest of the state in prosecuting one who has been indicted for a crime that it should be applied strictly and only when the circumstances clearly show the prosecutor intended to subvert the protections afforded by the Double Jeopardy Clause." (Punctuation and citation omitted; emphasis supplied.) State v. Oliver, 188 Ga. App. 47, 52 (3) (372 SE2d 256) (1988). Mathis has failed to make the requisite clear showing in this case.
Judgment affirmed. Blackburn, P. J., and Miller, J., concur.
Page 1 2 Georgia DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|