Boutwell v. State

The defendant's subsequent felony prosecution for theft by taking did not involve the same conduct as her prior misdemeanor prosecution for theft by taking, because the state charged the defendant in superior court with taking a different item of a different value from the victim on a different day

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Jennifer Boutwell appeals from the trial court’s denial of her plea in bar based on double jeopardy. She contends that the State was barred from prosecuting her for felony theft by taking following her guilty plea on an accusation charging her with misdemeanor theft by taking. For the following reasons, we affirm. The record reveals that on September 8, 2010, Boutwell was charged in the State Court of Fayette County with misdemeanor theft by taking: “on or about the 20th day of May, 2010 by unlawfully taking a 1976 yellow gold class ring and a gold in color chain having a value of less than Five Hundred Dollars $500.00 and being the property of the victim” in violation of OCGA § 16-8-2. See OCGA § 16-8-12 a 1 misdemeanor except where property exceeds $500.00 in value. She pled guilty to this charge on October 4, 2010. On October 20, 2010, Boutwell was charged in the Superior Court of Fayette County with felony theft by taking. The indictment states that she “on and about the 3rd day of May 2010, did unlawfully take a gold herringbone style necklace, the property of the victim, with a value greater than $500.” The same person was the alleged victim in both cases.

Boutwell filed a plea in bar based on double jeopardy on the ground that the felony theft by taking arose from the same conduct as the misdemeanor theft by taking. Following a hearing, the trial court denied Boutwell’s plea in bar.

Boutwell v. State

The defendant's subsequent felony prosecution for theft by taking did not involve the same conduct as her prior misdemeanor prosecution for theft by taking, because the state charged the defendant in superior court with taking a different item of a different value from the victim on a different day

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