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Coney v. State

Collateral estoppel did not prevent the defendant's aggravated stalking conviction, because the earlier probation revocation hearing was not a criminal trial.

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After the denial of his motion for new trial, Franklin Bernard Coney appeals from his judgment of conviction for aggravated stalking. His sole enumeration of error is that the trial court erred in denying his plea in bar based upon an earlier decision declining to revoke his probation on the basis of the same offense. We disagree and affirm. Coney never filed a written plea in bar, and he did not raise this issue before trial. In the courtroom, as the trial began, Coney’s counsel stated: “Your honor, if I may, before we actually commence the case, might I make just a verbal plea at the bar sic here which I feel that I’m somewhat required to do” He then proceeded with his argument, the State responded, and the trial court denied his plea in bar.1

Coney argues that collateral estoppel should apply here, because the probation revocation hearing had already determined “whether Coney had committed aggravated stalking” and that question should not be relitigated. But a probation revocation hearing is not a criminal trial, and therefore the trial court’s ultimate decision in that matter does not constitute res judicata or collateral estoppel. State v. Jones , 196 Ga. App. 896, 898 397 SE2d 209 1990 “This court has previously ruled that a ruling in favor of the accused in a probation revocation hearing does not serve as collateral estoppel to preclude a subsequent trial of the criminal charge which formed the basis of the revocation proceeding. Cits.”; Smith v. State , 171 Ga. App. 279, 282 319 SE2d 113 1984 “In summary, a probation revocation hearing is similar to a preliminary hearing, and jeopardy does not attach at a preliminary hearing.”

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