Langlands v

State, 282 Ga. 103, 646 S.E.2d 253 (2007). Trial court erred in granting the defendant’s plea in bar because double jeopardy did not bar a second trial on the same charges since the retrial was granted due to an erroneous evidentiary ruling; the order granting a new trial did not find the evidence was legally insufficient to sustain the verdict, but instead, the second trial judge granted the new trial based on the original trial court’s error in admitting an exhibit to prove that the defendant had a prior felony conviction after the defendant had offered to stipulate that the defendant was a convicted felon. State v. Caffee, 291 Ga. 31, 728 S.E.2d 171 (2012). Since the reversal of a defendant’s convictions amounted to neither an adjudication of not guilty nor a finding that the evidence did not authorize the verdict, the defendant’s re-indictment and retrial were not barred. Dryden v. State, 316 Ga. App. 70, 728 S.E.2d 245 (2012). Trial court did not err by declaring a mistrial after the first trial and retrying the defendant because the defendant did not show that the defendant raised the doctrine of procedural double jeopardy prior to the second trial. Riddick v. State, 320 Ga. App. 500, 740 S.E.2d 244 (2013). Since the record established that the order authorizing the withdrawal of the defendant’s guilty pleas was vacated on the defendant’s own motion, thereby reinstating the defendant’s original guilty pleas and convictions, there was not a second prosecution and the trial court did not err by denying the defendant’s motion for plea in bar. Pierce v. State, 294 Ga. 842, 755 S.E.2d 732 (2014). Allen charge. — After a jury indicated that it was deadlocked and then requested a second Allen charge, the trial court did not abuse its discretion in declaring a mistrial; consequently, defendant’s plea in bar for double jeopardy lacked merit. DeSouza v. State, 270 Ga. App. 849, 608 S.E.2d 313 (2004). Retrial and sentencing after conviction set aside. — State generally may retry defendant who succeeds in having first conviction set aside and, as a corol- 16-1-8 lary of that power, to impose whatever sentence may be authorized, whether or not it is greater than sentence imposed after first conviction. McClure v. Hopper, 234 Ga. 45, 214 S.E.2d 503 (1975). Although defendant’s conviction was reversed because the state did not meet its burden of production as to defendant’s motion challenging the sufficiency of a search warrant affidavit, the defendant could be retried since defendant’s conviction was set aside on procedural grounds. Watts v. State, 261 Ga. App. 230, 582 S.E.2d 186 (2003). In the context of a granted motion for mistrial, governmental misconduct will support a plea in bar based on double jeopardy if the prosecutor or trial judge intended to goad the defendant into moving for a mistrial. In the context of a reversal or grant of a motion for new trial, on the other hand, double jeopardy may bar a retrial where the prosecutor intended to prevent an acquittal, or the trial judge accused of misconduct, believed at the time was likely to occur in the absence of the judge’s misconduct. Paul v. State, 266 Ga. App. 126, 596 S.E.2d 670 (2004). Imposition of greater sentence upon retrial. — Imposition of higher sentence on defendant being retried for crime does not violate due process or constitute double jeopardy so long as jury is not informed of prior sentence and second sentence is not otherwise shown to be a product of vindictiveness. McClure v. Hopper, 234 Ga. 45, 214 S.E.2d 503 (1975). When the state seeks to prosecute a defendant for two offenses, one of which is included in the other, and the defendant receives a mistrial on the greater offense, the remaining conviction of the lesser offense does not bar retrial of the greater offense. Rower v. State, 267 Ga. 46, 472 S.E.2d 297 (1996). Effect of reversal for error at trial. — Because the reversal of defendant’s conviction was based on trial error, double jeopardy did not prevent retrial. Daniels v. State, 165 Ga. App. 397, 299 S.E.2d 746 (1983). Double jeopardy protection did not bar a second trial on the same charges because the defendant’s motion for new trial was granted due to an erroneous evidentiary 123 Retrial (Cont’d) ruling. State v. Caffee, 291 Ga. 31, 728 S.E.2d 171 (2012). Retrial was not barred when reversal based on inadmissible evidence. — When the conviction was reversed on the basis that the testimony of certain witnesses was inadmissible hearsay, and since it was clear from the court’s opinion that the majority neither intended to nor actually did pass upon the sufficiency of the evidence, the defendant’s plea of double jeopardy was properly denied; the question remained whether the evidence did indeed support the verdict, and the trial transcript revealed circumstantial evidence from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Glisson v. State, 192 Ga. App. 409, 385 S.E.2d 4, cert. denied, 192 Ga. App. 901, 385 S.E.2d 4 (1989). When the actions of a prosecutor cause a mistrial, a second trial does not constitute double jeopardy in violation of the defendant’s constitutional rights. Japhet v. State, 176 Ga. App. 189, 335 S.E.2d 425 (1985). Trial court did not err in denying the defendant’s plea of former jeopardy because the court’s finding that the prosecution’s question on cross-examination was an unintentional reference to the defendant’s right to remain silent was not clearly erroneous; the record contained evidence to support the trial court’s finding that the prosecutor’s question was not intended to goad the defense into seeking a mistrial. Demory v. State, 313 Ga. App. 265, 721 S.E.2d 93 (2011). Prosecutor’s actions resulting in mistrial and creating double jeopardy. — Because a prosecutor’s conduct violated one of the most basic rules of prosecutorial procedure, specifically, producing documents in discovery showing that the defendant refused to speak with police and requested a lawyer after being advised of Miranda, and hence intentionally goading the defendant into moving for a mistrial, the trial court erred in denying the defendant’s motion for a plea in bar on double jeopardy grounds. Anderson v. State, 285 Ga. App. 166, 645 S.E.2d 647 (2007). 16-1-8 Nature of prosecutor’s misconduct. — When it was not shown that the prosecutor’s misconduct was for the purpose of aborting the trial and securing an opportunity to retry the case, the trial court properly concluded that double jeopardy did not bar defendant’s retrial. Dinning v. State, 267 Ga. 879, 485 S.E.2d 464 (1997). Governmental misconduct. — After the trial court previously granted the defendant’s motion for a mistrial and, although it was not specified why the motion was granted, it was assumed that it was granted due to the state’s intentional misconduct during that first trial, because there was no indication in the trial court record of any specific intent by the state to subvert defendant’s double jeopardy rights by provoking the defendant into seeking the mistrial, the trial court erred in granting the defendant’s motion for discharge and acquittal of a retrial on double jeopardy grounds. State v. Brown, 278 Ga. App. 827, 630 S.E.2d 62 (2006). Retrial after mistrial due to jury’s failure to reach verdict did not constitute double jeopardy under former Code 1933, § 26-507(e)(2)(C) (see now O.C.G.A. § 16-1-8(e)(2)(C)). Phillips v. State, 238 Ga. 632, 235 S.E.2d 12 (1977). Retrial for lack of sufficient venue evidence. — Absent sufficient proof establishing venue, the defendant’s aggravated sexual battery and aggravated sodomy convictions were reversed; but, given that sufficient evidence otherwise existed to support the former charge, retrial on the same would not violate the defendant’s double jeopardy rights. Melton v. State, 282 Ga. App. 685, 639 S.E.2d 411 (2006). Because the state failed to prove the element of venue beyond a reasonable doubt, and there was no indication in the record that the juvenile waived venue or that the court took judicial notice of venue as an element of the offenses charged, the juvenile’s adjudications of delinquency had to be reversed. However, although the delinquency adjudications had to be reversed, the state was permitted to retry the juvenile without violating the double jeopardy clause, because there was otherwise sufficient evidence at trial to support the adjudications entered. In the Interest 124 of J.B., 289 Ga. App. 617, 658 S.E.2d 194 (2008). Purposes of discharge of jury for failure to agree. — Possibility of retrial after discharge of jury for failure to agree serves to discourage putting excessive pressure on juries to agree, and reduces risk that verdict will not be a genuine jury decision freely arrived at. In addition, it serves to prevent a single juror from unreasonably holding out for acquittal, causing a mistrial, and thereby invoking bar of double jeopardy singlehandedly. Orvis v. State, 237 Ga. 6, 226 S.E.2d 570 (1976). Retrial allowed following mistrial based on juror’s disqualification. — Removal of a juror who had mistakenly misadvised the trial court as to the juror’s qualifications upon voir dire, thereby depriving the jury of the statutory minimum number, constituted ‘‘manifest necessity’’ for a mistrial, and retrial following such mistrial was not barred by a plea of double jeopardy. Bishop v. State, 179 Ga. App. 606, 347 S.E.2d 350 (1986). Retrial not necessarily barred by fact that alternative to mistrial existed. — Mere existence of some alternative will not compel conclusion that declaration of mistrial by trial judge was sufficiently precipitate to bar retrial. Jones v. State, 232 Ga. 324, 206 S.E.2d 481 (1974). When a mistrial was granted at the request of the defendant, retrial was not prohibited since it was not established that the state intended to goad the defendant into moving for a mistrial. Williams v. State, 268 Ga. 488, 491 S.E.2d 377 (1997). After the trial court duly weighed the respective rights of the defendant and the state before electing sua sponte to declare a mistrial in a trial where no evidence had been presented and the defense’s case still remained unknown to the state, and since the court had considered other lesser alternatives, including the granting of a continuance, the trial court did not err in denying the defendant’s motion to dismiss or acquit by reason of former jeopardy. Terrell v. State, 236 Ga. App. 163, 511 S.E.2d 555 (1999). While more options other than a mistrial are available to a trial court faced 16-1-8 with a deadlocked jury, the trial court is not required to exercise those options under all circumstances; instead, an appellate court considers the trial court’s decision in this regard to be discretionary and it will reverse only if the trial court abuses that discretion. Leonard v. State, 275 Ga. App. 667, 621 S.E.2d 599 (2005). Retrial is permissible only if a manifest necessity existed for declaration of mistrial lest otherwise the end of public justice be defeated. Jones v. State, 232 Ga. 324, 206 S.E.2d 481 (1974). ‘‘Manifest necessity’’ for a mistrial shown. — In a bench trial, the judge’s inability to disregard evidence the judge ruled inadmissible constituted a manifest necessity for a mistrial and the defendant’s double jeopardy rights would not be violated by a retrial to a jury. Bailey v. State, 219 Ga. App. 258, 465 S.E.2d 284 (1995). After a news story about the case appeared in a local newspaper the morning after the trial court had decreed a recess to consider a question regarding the admissibility of certain evidence objected to by the defense, it was within the court’s discretion to declare a mistrial based on ‘‘manifest necessity.’’ Putnam v. State, 245 Ga. App. 95, 537 S.E.2d 384 (2000). In the defendant’s trial for malice murder and felony murder arising out of the shooting death of a drug dealer, the trial court did not abuse the court’s discretion in declaring a mistrial over the defendant’s objection out of manifest necessity given that a juror had consulted with outside sources and shared legally inaccurate information with the jury. The mistrial did not bar the defendant’s retrial on the charges. Blake v. State, 304 Ga. 747, 822 S.E.2d 207 (2018). ‘‘Manifest necessity’’ for a mistrial not shown. — Failure to hold a Jackson-Denno hearing over defendant’s allegation that a custodial statement had been coerced and introduction of testimony of the defendant related thereto did not create ‘‘manifest necessity’’ for a mistrial. Smith v. State, 263 Ga. 782, 439 S.E.2d 483 (1994). Cross examination of an accomplice who has negotiated a plea and is testifying against a defendant, in order to bring out 125 Retrial (Cont’d) bias inherent in the witness’s testimony, is proper and constitutionally protected, therefore granting a mistrial over defendant’s objection was error and manifest necessity did not exist. Hernandez v. State, 244 Ga. App. 874, 537 S.E.2d 149 (2000). Retrial was barred where the trial court improperly terminated a trial because defendant was not timely notified of additional charges; the court failed to consider alternative remedies which would have preserved defendant’s right to proceed with the trial. Jefferson v. State, 224 Ga. App. 8, 479 S.E.2d 406 (1996). Because the trial court’s grant of a new trial stemmed from trial error, the defendant could not be retried on an offense of per se DUI, given that the defendant was adjudged not guilty of that charge based upon the insufficiency of the evidence; thus, the trial court erred in denying the plea in bar. Shah v. State, 288 Ga. App. 788, 655 S.E.2d 347 (2007). If the possibility of prosecutorial abuse exists, examination of the alternatives to mistrial is more stringent. Jones v. State, 232 Ga. 324, 206 S.E.2d 481 (1974). Defense could not prevent retrial by withholding consent to mistrial, since even if the trial court had erred in terminating the homicide trial, and even if the defense could not be blamed for misunderstanding the trial court’s ruling on whether the court would permit argument and admit evidence concerning the prosecutor’s political ambitions, nevertheless it was the defense who injected the matter that resulted in the mistrial. McGarvey v. State, 186 Ga. App. 562, 368 S.E.2d 127, cert. denied, 186 Ga. App. 918, 368 S.E.2d 127 (1988). When a defendant faced two separate charges for driving under the influence, occurring on two different dates, defendant’s acquittal on the first charge of driving under the influence did not bar a subsequent prosecution for driving under the influence on the later date, where neither of the accusations stated that the date of the alleged offenses was a material averment and the state could prove their commission at any time within the 16-1-8 two-year statute of limitations. Sandner v. State, 193 Ga. App. 62, 387 S.E.2d 27 (1989). Defendant’s abuse of rape shield statute justified retrial. — Defendant’s introduction of evidence that was prohibited by the rape shield statute gave the court grounds to find manifest necessity for a mistrial; therefore, state and federal double jeopardy provisions did not bar reprosecution. Banks v. State, 230 Ga. App. 258, 495 S.E.2d 877 (1998). Jurisdictional Issues Acquittal before court having no jurisdiction is void, and therefore is not a bar to subsequent indictment and trial in a court which has jurisdiction of the offense. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir.), cert. denied, 454 U.S. 1035, 102 S. Ct. 575, 70 L. Ed. 2d 480 (1981), rev’d on other grounds, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983). Failure to prove venue in first trial is not prohibition to new trial. — Retrial of defendants was not barred by O.C.G.A. § 16-1-8 because a subsequent prosecution was not barred if the former prosecution was before a court which lacked jurisdiction over the accused or the crime, and the trial court in the first trial lacked jurisdiction over the crime because the state failed to prove venue, and therefore O.C.G.A. § 16-1-8(d)(1) applied. Grier v. State, 275 Ga. 430, 569 S.E.2d 837 (2002). After a defendant was granted a directed verdict on the basis that the state failed to prove venue in a criminal prosecution for driving under the influence per se, retrial was not barred under U.S. Const., amend. 5 and O.C.G.A. § 16-1-8 because, while venue had to be laid in the county in which the crime was allegedly committed under Ga. Const. 1983, Art. VI, Sec. II, Para. VI and O.C.G.A. § 17-2-2 and venue was a jurisdictional fact, failure to prove venue was a procedural error that implied nothing as to defendant’s guilt or innocence. Hudson v. State, 296 Ga. App. 758, 675 S.E.2d 603, cert. denied, No. S09C1163, 2009 Ga. LEXIS 413 (Ga. 2009), cert. denied, 558 U.S. 1076, 130 S. Ct. 799, 175 L. Ed. 2d 559 (2009). 126 No former jeopardy bar from prior accusation. — As defendant was initially charged by accusation with terroristic threats and aggravated stalking, which were not properly prosecuted without an indictment or a written waiver thereof pursuant to O.C.G.A. §§ 17-7-70(a) and 17-7-70.1, the dismissal of the accusation after the jury was sworn and the indictment of the same charges was proper and there was no former jeopardy bar under O.C.G.A. § 16-1-8(d)(1), as the former prosecution under the indictment was void and of no effect. Armstrong v. State, 281 Ga. App. 297, 635 S.E.2d 880 (2006). Effect of proceedings in municipal court which lacks jurisdiction. — Fact that charges were initially brought against the criminal defendant in municipal court under former Code 1933, § 79A-9917 (see now O.C.G.A. § 16-13-2) did not bar subsequent proceedings against defendant in state court on double jeopardy grounds, where municipal court lacks jurisdiction of such case. State v. Millwood, 242 Ga. 244, 248 S.E.2d 643 (1978). Since the recorder’s court lacked jurisdiction to try a defendant for driving without insurance, a violation of state law, neither O.C.G.A. § 16-1-7(b) nor § 16-1-8(b) precluded later prosecution in superior court for operating a motor vehicle after having been declared an habitual violator and for driving under the influence. Parker v. State, 170 Ga. App. 333, 317 S.E.2d 209 (1984). Proceeding in recorder’s court was null and void because the court lacked jurisdiction to try the defendant for a state law violation; thus, the defendant’s retrial did not constitute double jeopardy or prior prosecution. Duncan v. State, 185 Ga. App. 854, 366 S.E.2d 154 (1988), overruled on other grounds, Kolker v. State, 193 Ga. App. 306, 387 S.E.2d 597 (1989). Since the municipal court lacked jurisdiction to try defendant pursuant to a Uniform Traffic Citation charging defendant with ‘‘simple battery’’ in violation of ‘‘Section 16-5-23’’, prosecution of the offense before such court was void; accordingly, trial of defendant for simple battery in the state court was not barred on the ground of double jeopardy or prior prose- 16-1-8 cution. Rangel v. State, 217 Ga. App. 152, 456 S.E.2d 739 (1995). Jurisdictional effect of election to try misdemeanor included within felony. — Even though evidence in case indicates a felony was committed, prosecuting authorities may very well elect to try defendant in state court for misdemeanor included within that felony, and fact that they have so proceeded will not deprive state court of jurisdiction. Perkins v. State, 143 Ga. App. 124, 237 S.E.2d 658 (1977). Kidnapping with bodily injury in one county and murder in another. — When the accused kidnapped the victim and inflicted bodily injury upon the victim in one county, and then abducted the victim to a second county and killed the victim there, the two offenses are not within a single court’s jurisdiction and cannot be tried together; therefore, there is no procedural bar to the accused’s subsequent prosecution for murder in the second county. Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 667 (1978). Jurisdiction not barred where defects in charge amendable. — Probate court did not lack jurisdiction over defendant even though a proper accusation was not filed since the defects cited by the defendant in demurrers were amendable. Dean v. State, 214 Ga. App. 768, 449 S.E.2d 158 (1994). Concurrent jurisdiction required. — Because the state could not indict defendant for unlawfully using or causing another to use a telephone to arrange the commission of the victim’s murder, no concurrent jurisdiction existed; therefore, O.C.G.A. § 16-1-8(c) did not bar the state from prosecuting defendant for malice murder, felony murder, aggravated assault, and burglary. Sullivan v. State, 279 Ga. 893, 622 S.E.2d 823 (2005). Application Generally Application of subsection (a). — O.C.G.A. § 16-1-8(a) governs when an accused is being prosecuted for a crime, the first trial of which was terminated for any reason listed in O.C.G.A. § 16-1-8(e), since it is a situation in which the accused 127 Application Generally (Cont’d) was formerly prosecuted for the same crime based upon the same material facts. If a case fits within the parameters of subsection (a), that becomes the exclusive means for determining whether double jeopardy bars a retrial. State v. LeMay, 186 Ga. App. 146, 367 S.E.2d 61 (1988). When a defendant consented to the entry of nolle prosequi after the jury had been impaneled and sworn, and the defendant was thereafter charged with the same offense, the original prosecution was neither an acquittal nor an improperly terminated prosecution for the purposes of O.C.G.A. § 16-1-8. Burks v. State, 194 Ga. App. 809, 392 S.E.2d 300 (1990). In a criminal matter wherein the state brought charges against defendant, a bench trial was commenced, witnesses were sworn in and testified, and the state thereafter terminated that case when it nolle prossed the charges over defendant’s objection, jeopardy attached under Ga. Const. 1983, Art. I, Sec. 1, Para. XVIII, and under O.C.G.A. § 16-1-8(a)(2), the state could not thereafter retry defendant on the same charges; although the state’s reason for nolle prossing the first set of charges was due to the state’s inability to introduce DNA evidence as to defendant’s identity, as the state failed to include that information in the indictment in order to avoid a limitations issue, the reason was inconsequential because jeopardy had attached. State v. Aycock, 283 Ga. App. 876, 643 S.E.2d 249 (2007). Trial court properly granted the defendant’s plea in bar and plea of former jeopardy in a burglary prosecution as the state improperly terminated the first trial by dismissing the indictment after jeopardy attached without the defendant’s consent, and the second burglary prosecution, although alleging a different date, residence, and accomplice, was based on the same material facts as the first indictment. State v. Jackson, 290 Ga. App. 250, 659 S.E.2d 679 (2008). Application of subsection (b). — Prosecution for forgery was not barred by O.C.G.A. § 16-1-8(b)(1) because defendant could not have been convicted of forgery in the state court due to the court’s 16-1-8 lack of jurisdiction and because there was no evidence that the district attorney handling the former prosecution case knew of all the crimes. State v. Hulsey, 216 Ga. App. 670, 455 S.E.2d 398 (1995). Both multiple convictions and successive prosecutions barred. — If multiple convictions arising out of single prosecution are barred, successive prosecution is likewise barred. Brock v. State, 146 Ga. App. 78, 245 S.E.2d 442 (1978). Multiple accusations and indictments not barred. — Because the crimes alleged in the accusation and indictment involved different victims, locations, and times, and hence did not arise from the same conduct, the trial court did not err in denying the defendant’s motion to dismiss the charges in the indictment on double jeopardy grounds based on the defendant’s prior plea to the charges in the accusation. Davis v. State, 287 Ga. App. 535, 652 S.E.2d 177 (2007). No reprosecution for armed robbery. — Reversal of defendant’s convictions for felony murder based on the felony of armed robbery due to insufficient evidence raises a procedural double jeopardy bar to any reprosecution for armed robbery. Prater v. State, 273 Ga. 477, 541 S.E.2d 351 (2001). Carjacking and armed robbery. — Defendant’s prosecution for a car hijacking was not barred by O.C.G.A. § 16-1-8(b)(1) as the car hijacking and the armed robbery did not arise from the same conduct because the car hijacking incident and the armed robbery incident occurred three days apart, took place at different locations, and involved different victims. Syas v. State, 273 Ga. App. 161, 614 S.E.2d 803 (2005). Effect of erroneously labeling dismissal for failure to prosecute as acquittal. — Trial judge cannot terminate state’s right to prosecute by erroneously labeling ruling an acquittal. Accordingly, the state is not barred from appealing such void acquittals, since the issue has not been joined in criminal cases and the defendant has not been placed in jeopardy on those charges. State v. Cooperman, 147 Ga. App. 556, 249 S.E.2d 358 (1978). Effect of improper revocation of bond. — Incarceration of defendant re- 128 sulting from the improper revocation of defendant’s bond was not a bar to prosecution for vehicular homicide and related offenses. Shaw v. State, 225 Ga. App. 193, 483 S.E.2d 646 (1997). Continuation of a trial for two months before the same jury, absent exceptional circumstances or consent of the parties, was improper; however, the continuance did not constitute a ‘‘termination’’ within the meaning of O.C.G.A. § 16-1-8 and later proceedings were not barred by double jeopardy; overruling Paquin v. Town of Tyrone, 261 Ga. 418, 405 S.E.2d 497 (1991). Morris v. State, 264 Ga. 823, 452 S.E.2d 100 (1995). Effect on subsequent prosecution of nolle prosequi before jury impaneled. — When in superior court, before a jury is impaneled and sworn, the state enters a nolle prosequi of the indictment, and one of the charges is transferred to the county solicitor’s office where it subsequently is included in an accusation before the state court, this does not result in an improper termination or constitute the basis for prosecutorial misconduct, and the prosecution is not barred because of double jeopardy. Newman v. State, 166 Ga. App. 609, 305 S.E.2d 123 (1983). Motion to dismiss waives right to object to termination of trial and no former jeopardy arises. Daughtrey v. State, 138 Ga. App. 504, 226 S.E.2d 773 (1976). Defendant was named as unindicted coconspirator in entirely different proceeding which in no way operated to place defendant in double jeopardy. Caldwell v. State, 171 Ga. App. 680, 320 S.E.2d 888 (1984). Record must affirmatively demonstrate that issue in second trial was previously determined. — Unless record of prior proceeding affirmatively demonstrates that issue involved in second trial was definitely determined in former trial, possibility that it may have been does not prevent relitigation of that issue. State v. Tate, 136 Ga. App. 181, 220 S.E.2d 741 (1975). Effect of trial court’s findings of juror impartiality. — Although question of juror impartiality is a mixed question of law and fact, trial court’s findings of im- 16-1-8 partiality will be set aside only where manifest prejudice to defendant has been shown. Jones v. State, 247 Ga. 268, 275 S.E.2d 67, cert. denied, 454 U.S. 817, 102 S. Ct. 94, 70 L. Ed. 2d 86 (1981). Vehicular homicide prosecution not barred when victim died following traffic violation prosecutions. — Prosecution for vehicular homicide was not barred against a defendant who at prior proceedings had been prosecuted for and pled guilty to other offenses arising from the same incident since, at the time of the earlier proceedings, the victim had not yet died. Herrera v. State, 175 Ga. App. 740, 334 S.E.2d 339 (1985). Effect of prior hearing under Uniform Code of Military Justice. — Recommended dismissal, arising from Article 32 hearing under Uniform Code of Military Justice (10 U.S.C. § 832), is not acquittal or an equivalent resolution of factual issues in defendant’s favor. Coalter v. State, 183 Ga. App. 335, 358 S.E.2d 894 (1987). Federal firearm conviction did not bar prosecution for felony murder. — Fact that the defendant had been convicted in federal court of possession of a firearm under 18 U.S.C. § 922 did not bar a felony murder prosecution in state court on double jeopardy grounds as the state had to prove facts in the felony murder case that were not required to be proved in the federal case. Moreover, the federal offense, which required that a firearm be possessed in and affecting interstate commerce, was not within the concurrent jurisdiction of Georgia and under O.C.G.A. § 16-1-8(c) did not bar a subsequent prosecution for felony murder predicated on the underlying firearm possession charge. Marshall v. State, 286 Ga. 446, 689 S.E.2d 283 (2010). Trial in Georgia appropriate despite trial in another state. — As the defendant’s theft by taking an automobile occurred in both Georgia and Kentucky, the fact that the defendant was prosecuted in Kentucky did not bar Georgia from also prosecuting the defendant under the dual sovereignty doctrine of the double jeopardy clause; further, O.C.G.A. § 16-1-8(c) was inapplicable because there was not a federal prosecution for the 129 Application Generally (Cont’d) same crime. Jackson v. State, 284 Ga. 826, 672 S.E.2d 640 (2009). Acquittal on aggravated sodomy charge did not bar conviction for sexual assault under another count of the indictment. The dates alleged for the two charges were different, and the victim recounted two separate incidents when defendant performed oral sex on the victim. In short, the charges did not involve the same conduct, and no substantive or procedural aspects of double jeopardy were violated. Brown v. State, 188 Ga. App. 510, 373 S.E.2d 293 (1988). Indictment on charges previously nolle prossed. — It was not a violation of O.C.G.A. §§ 16-1-7(b) and 16-1-8(b) to indict the defendant on charges that had previously been nolle prossed under a plea agreement; the defendant breached the agreement by withdrawing a guilty plea to one charge, thereby allowing the state to indict the defendant on the charges that were previously nolle prossed. Thomas v. State, 285 Ga. App. 792, 648 S.E.2d 111, cert. denied, No. S07C1550, 2007 Ga. LEXIS 628 (Ga. 2007). Indictment returned while jeopardy ongoing. — Second indictment, which was apparently filed to address the eventuality that the defendants’ motion to withdraw a guilty plea would be granted, was returned while the defendant’s jeopardy was ongoing, and, as such, the indictment did not violate U.S. Const., amend. 5; Ga. Const. 1983, Art. I, Sec. I, Para. XVIII; or O.C.G.A. § 16-1-8. Phillips v. State, 298 Ga. App. 520, 680 S.E.2d 424 (2009). Second indictment did not violate double jeopardy under O.C.G.A. § 16-1-8(a) as entry of nolle prosequi as to earlier counts did not give rise to a viable double jeopardy challenge to reindictment on the same offenses. Phillips v. State, 298 Ga. App. 520, 680 S.E.2d 424 (2009). Independent offenses. — Defendant’s plea of guilty to receipt of the victim’s automobile did not bar prosecution for burglary of the victim’s home prior to taking the vehicle. Maxey v. State, 239 Ga. App. 638, 521 S.E.2d 673 (1999). Defendant not placed in jeopardy. — Trial court erred by granting defen- 16-1-8 dant’s plea in bar and by granting defendant’s request for acquittal and discharge of aggravated battery and aggravated assault counts based on procedural double jeopardy protections as defendant was never placed in jeopardy as to those charges, which were brought in a new indictment against defendant, and defendant’s speedy trial request did not apply to the new indictment since the case had been transferred to the superior court. State v. Jones, 290 Ga. App. 879, 661 S.E.2d 573 (2008). State permitted to prove case against defendant. — Because the defendant’s brother was prosecuted in federal court for possession of a cocaine mixture in an apartment, the state was permitted to prove the state’s case against the defendant by proof of joint constructive possession; the state did not prosecute the brother for the brother’s joint constructive possession of the cocaine mixture in the apartment, but the United States did prosecute the brother in federal court. Holiman v. State, 313 Ga. App. 76, 720 S.E.2d 363 (2011). Firearm conviction not precluded by collateral estoppel. — Defendant’s conviction of possession of a firearm by a convicted felon was not precluded by collateral estoppel where defendant was acquitted of two other charges (aggravated assault and possession of a firearm during commission of a crime against a person) arising out of the same incident; the jury could have concluded that defendant had the gun but did not assault or attempt to rob the victim with it. Clark v. State, 194 Ga. App. 280, 390 S.E.2d 425 (1990). Disorderly conduct and DUI. — State was not barred from prosecuting defendant for the charges of violation of probationary license and DUI even though defendant had already been prosecuted for a disorderly conduct charge which arose out of a disturbance at a restaurant shortly before defendant drove off and was then stopped and charged with DUI. Selvey v. State, 201 Ga. App. 848, 412 S.E.2d 611 (1991). Double jeopardy issues with vehicular offenses. — Because a uniform traffic citation was deliberately withheld from filing, and the state did not authorize or 130 participate in the prosecution of the case, the probate court lacked authority to accept defendant’s plea to the proposed charge and impose a fine, making its resulting judgment void; hence, the trial court did not err in denying defendant’s plea in bar based on double jeopardy, since the probate court’s void judgment could not serve as the basis for barring the subsequent indictment and prosecution of defendant in the superior court. Roberts v. State, 280 Ga. App. 672, 634 S.E.2d 790 (2006). Premature termination of trial. — Termination of defendant’s trial after the first witness was sworn, but before findings were rendered by the trier of facts, was improper, where there was nothing in the record to indicate that defendant consented to the premature termination of trial, nor any evidence that defendant waived the right to object to the termination. Phillips v. State, 197 Ga. App. 491, 399 S.E.2d 234 (1990). Superior court erred in overruling defendant’s plea of former jeopardy to a prosecution for driving under the influence, where a recorder’s court judge had improperly terminated defendant’s trial on the same charge in referring the case to the superior court. Phillips v. State, 197 Ga. App. 491, 399 S.E.2d 234 (1990). Defendant was placed in double jeopardy where the probate court terminated the trial after the first witness was sworn and before findings of fact were rendered by the trier of fact and the court, sua sponte, bound over the case to the superior court without consent of the defendant to the bind-over. Dean v. State, 214 Ga. App. 768, 449 S.E.2d 158 (1994). Defendant waived the right to object to termination of probate court proceedings by requesting the probate court judge to bind the case over to the superior court. Bramlett v. State, 222 Ga. App. 687, 475 S.E.2d 704 (1996). Predicate offenses for RICO violation. — Failure to strike from a Racketeer Influenced and Corrupt Organizations Act (RICO) indictment, as predicate offenses, three thefts which had been formerly prosecuted was harmless error, where there was no reason to infer that defendant’s guilty pleas to other offenses were 16-1-8 tainted or otherwise affected by the superfluous addition of predicate offenses which had formerly been prosecuted. Bethune v. State, 198 Ga. App. 490, 402 S.E.2d 276, cert. denied, 198 Ga. App. 897, 402 S.E.2d 276 (1991). Sale and possession or drug offenses. — When defendant engaged in two separate courses of conduct, the attempt to sell marijuana to an undercover police officer and the possession of 12 pounds of marijuana at defendant’s home, double jeopardy did not attach to the second prosecution, as these acts occurred at different times and locations, with distinct quantities of contraband, even though defendant might have at some earlier time possessed all the marijuana in defendant’s home; thus, defendant’s argument on substantive double jeopardy was rejected. Kinchen v. State, 265 Ga. App. 474, 594 S.E.2d 686 (2004). Felony murder prosecution not precluded by double jeopardy claim. — In a case arising out of a robbery and shooting death, where, in the original trial, a mistrial was entered on the felony murder count, and defendant was found not guilty of aggravated assault with intent to rob, the state’s subsequent prosecution of defendant for felony murder based on the separate underlying felony of aggravated assault with a deadly weapon was not barred by collateral estoppel as a violation of defendant’s double jeopardy rights because evidence adduced at the first trial revealed that defendant jury could have concluded that defendant assaulted the victim with a deadly weapon but did not do so with the intent to rob. Phillips v. State, 272 Ga. 840, 537 S.E.2d 63 (2000). State’s motion for mistrial based on lack of disclosure did not prohibit retrial. — Trial court did not abuse its discretion in granting the state’s motion for a mistrial and ordering that defendant disclose additional alibi witnesses that defense counsel did not disclose after the state demanded such disclosure, but whom defense counsel mentioned in opening statement to the jury in defendant’s death penalty case, as the trial court’s decision to grant that sanction was entitled to great deference and the failure to 131 Application Generally (Cont’d) disclose the additional alibi witnesses violated the state’s right to a fair trial and the state was not precluded from retrying defendant after it obtained such disclosure. Tubbs v. State, 276 Ga. 751, 583 S.E.2d 853 (2003). Subsequent prosecution not barred since prosecutor had no earlier knowledge. — Because the defendant failed to affirmatively show that the prosecutor had any actual knowledge regarding approximately $300,000 worth of jewelry items found in a toolbox located at the defendant’s residence upon an eviction, which were the subject of a second theft prosecution involving jewelry the defendant had stolen, the second prosecution regarding those items was not barred on double jeopardy grounds. White v. State, 284 Ga. App. 805, 644 S.E.2d 903, cert. denied, No. S07C1243, 2007 Ga. LEXIS 564 (Ga. 2007). Trial court did not err by denying the defendant’s motion to dismiss on double 16-1-8 jeopardy grounds because, before the first trial, the witness statements did not demand a finding, as a matter of law, that the prosecutor had actual knowledge that the defendant had committed the crimes of conspiring to distribute marijuana and distributing marijuana; and, with regard to the gang crime, there was evidence that the state knew only that the defendant had joined a gang years before, not that the defendant was currently involved in drug-related gang activity. Randolph v. State, 334 Ga. App. 475, 780 S.E.2d 19 (2015). Sentence vacated and resentencing ordered when the trial court erred by increasing a juvenile defendant’s voluntary manslaughter sentence after defendant had already begun serving the sentence, because the original sentence was final at the time it was imposed, and defendant had no reason to believe otherwise; hence, the trial court’s increased sentence constituted double jeopardy and could not stand. Williams v. State, 273 Ga. App. 42, 614 S.E.2d 146 (2005).