Nicely v. State

Both the defendant's cocaine possession charge and traffic citation arose from a single transaction, both charges were within the superior court's jurisdiction and the district attorney was the prosecuting officer for both the cocaine possession charge and the traffic citation.

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A White County jury found Willis Nicely guilty beyond a reasonable doubt of possession of cocaine, OCGA § 16-13-30 a. Following the denial of his motion for a new trial, Nicely appeals, contending, inter alia, that the superior court erred in denying his double jeopardy plea in bar to the cocaine possession prosecution. Specifically, Nicely contends that, once the State prosecuted him for a traffic violation that arose from the same incident and accepted his plea of nolo contendere to that charge, Georgia’s procedural bar against double jeopardy barred any prosecution of the cocaine possession charge. For the reasons explained below, we reverse Nicely’s cocaine possession conviction. The record shows that, in the course of investigating possible illegal fishing on Sautee Creek on June 21, 2006, a law enforcement officer for the Georgia Department of Natural Resources arrested Nicely for possession of cocaine after finding one pipe containing cocaine residue in the car Nicely was driving and two pipes Nicely had used to smoke cocaine in his pocket. A White County sheriff’s deputy assisted in the investigation and issued Nicely a traffic citation for driving with a suspended license. The traffic citation directed Nicely to appear in the probate court, which hears misdemeanors in White County.

A White County grand jury indicted Nicely for possession of cocaine on October 2, 2006. On October 10, 2006, Nicely appeared in the probate court and entered a plea of nolo contendere to the citation for driving with a suspended license. Later, Nicely filed a plea in bar, requesting that the cocaine possession charge be dismissed. The superior court denied the plea in bar, finding that there was no evidence that the assistant district attorney who represented the State at the hearing where Nicely entered a nolo contendere plea to the traffic citation personally knew of the cocaine possession charge at the time Nicely entered his plea to the traffic citation.

Nicely v. State

Both the defendant's cocaine possession charge and traffic citation arose from a single transaction, both charges were within the superior court's jurisdiction and the district attorney was the prosecuting officer for both the cocaine possession charge and the traffic citation.

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