Surh v. State

Taemin Surh appeals the denial of his motion in autrefois convict and plea of double jeopardy. We affirm, for reasons that follow. In reviewing a trial court’s ruling on a plea in bar, “where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, as here, we review de novo the trial court’s application of the law to the undisputed facts.”1 Here, the undisputed evidence shows that on March 24, 2007, Surh was arrested and charged with misdemeanor possession of marijuana,2 two counts of aggravated assault,3 and two counts of aggravated assault upon a police officer.4 On December 17, 2008, he entered a negotiated nolo contendere plea to the possession of marijuana charge, agreeing to serve 12 months on probation and to pay a $500 fine, plus assessments, to submit to random drug screens in the Drug Court, and to waive his Fourth Amendment rights pertaining to search and seizure.5 Surh’s plea was accepted by the Chief Magistrate of Glynn County, Judge Timothy L. Barton, who had been specially designated by a superior court judge of the Brunswick Judicial Circuit “to preside at the Glynn County Drug Court on . . . December 17, 2008, as a Judge of that court pro hac vice .”

On January 26, 2009, the Chief Judge of the Superior Court for the Brunswick Judicial Circuit entered an order “withdrawing” Surh’s plea. The order stated that after a review of the order allowing Judge Barton to sit pro hac vice , it is clear that Judge Barton was presiding over Drug Court only, and that he was not permitted to consider other matters not in the normal course of a Drug Court session. Therefore, the plea entered by Surh is hereby withdrawn by court order, and the order of nolle prosequi entered on the additional charges of aggravated assault, two counts, and aggravated assault on a police officer, two counts, pursuant to this plea is declared null and void ab initio. Surh subsequently filed a motion in autrefois convict and plea of former jeopardy, which the trial court denied in a detailed order, stating in relevant part that: