“Where two or more courts have concurrent jurisdiction of the same offense, the court which first acquires jurisdiction of the prosecution retains it to the exclusion of others while that case is pending, thereby preempting jurisdiction for all offenses originating in the same course of criminal conduct.”
How later courts described this case
- “Where two or more courts have concurrent jurisdiction of the same offense, the court which first acquires jurisdiction of the prosecution retains it to the exclusion of others while that case is pending, thereby preempting jurisdiction for all offenses originating in the same course of criminal conduct.”
- although crimes arose from the same conduct, no successive prosecution bar where venue for second prosecuted offense did not lie in the county of the first prosecution
Written by the judges who cited it.
Later courts went against this
Disapproved in part, on other grounds by Washington v. State, 276 Ga. 655 (2003)
266 Ga. 115 (464 SE2d 371) (1995), disapproved in part on other grounds, Washington v. State, 276 Ga. 655, 658 (2) (581 SE2d 518) (2003).
The opinion
Thompson, Justice,
concurring in part and dissenting in part.
I concur fully with Division 3 of the majority opinion. Because the trial court granted a mistrial on its own motion when the jury was unable to reach a verdict, a presumption of prosecutorial vindictiveness does not arise. Thus, the State can reindict defendant for murder and seek the death penalty.
I also concur in Divisions 1 and 4. However, I dissent to Division 2 because the kidnapping charge is procedurally barred.
OCGA § 16-1-7 (b) provides that offenses which are part of the same course of conduct must be tried in a single prosecution if they are within the jurisdiction of a single court and are known to the prosecuting officer when the prosecution is begun. This Code section has always been construed to bar the subsequent prosecution of crimes which could have been tried in a single court when the officer actually handling the proceedings knew of the crimes but prosecuted less than all of them. Until now, it has not mattered that the officer actually handling the proceedings did not have jurisdiction of all of the crimes. The question was whether he knew of all of the crimes and whether they could be prosecuted in a single court. See Baker v. State, 257 Ga. 567, 569 ( 361 SE2d 808 ) (1987); Powe v. State, 257 Ga. 563, 564-565 ( 361 SE2d 811 ) (1987).
True, the cases which have considered OCGA § 16-1-7 (b) have applied it vertically, i.e., where all of the crimes could have been tried in the superior court of a county but some of the crimes were prosecuted in an inferior court within the same county. I see no reason why OCGA § 16-1-7 (b) should not also be applied horizontally, i.e., where all of the crimes could have been tried in one county but less than all *122 of the crimes were prosecuted in another county. After all, the State is a single sovereign and each and every prosecutor acts on behalf of the State. State v. Sallie, 206 Ga. App. 732, 736 ( 427 SE2d 11 ) (1992).
Acting on behalf of the State, the district attorney of McIntosh County waived the kidnapping charge in this case. The kidnapping and the murder arose out of the same course of conduct and they were within the jurisdiction of a single court — the Superior Court of Thomas County. Nevertheless, with full knowledge of the kidnapping charge, the district attorney of McIntosh County prosecuted defendant for murder. It follows that defendant cannot be reindicted for kidnapping.