State v. Jackson

A prosecution is barred if the accused was formerly prosecuted for the same crime based upon the same material facts, if such former prosecution resulted in a conviction or acquittal or if it was terminated improperly.

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The State appeals from the trial court’s order granting Keonette Jackson’s plea in bar and plea of former jeopardy in this burglary case. The State contends that its subsequent indictment of Jackson was not barred by its earlier nolle prosequi of its first indictment, which occurred after the State discovered a fatal variance between the indictment and the facts it presented at trial. For the reasons set forth below, we affirm. The record shows that the State charged Jackson with one count of burglary as part of a multi-count indictment against several individuals. During trial, and after the jury was sworn and witnesses had testified, the prosecuting attorney realized that the evidence presented against Jackson did not conform to the indictment because it showed a different residence, date, and accomplice than the offense alleged in the indictment. Over the objection of defense counsel, the trial court granted the State permission to nolle prosequi the indictment against Jackson. The State subsequently obtained a new indictment against Jackson that charged him with committing burglary in a manner consistent with the evidence presented in the earlier trial. Jackson filed a plea in bar and plea of former jeopardy,1 which the trial court granted.

The State asserts that the prohibition against double jeopardy should not bar the second indictment. Until adoption of the 1968 Georgia Criminal Code, questions of double jeopardy were determined under the criteria contained in the United States and Georgia Constitutions. However, those provisions are now ‘minimum standards’ as the 1968 Georgia Criminal Code has expanded the proscription of double jeopardy beyond that provided in the United States and Georgia Constitutions. Therefore, questions of double jeopardy in Georgia must now be determined under the expanded statutory proscriptions.Citations and punctuation omitted. Brock v. State , 146 Ga. App. 78, 79 245 SE2d 442 1978.

State v. Jackson

A prosecution is barred if the accused was formerly prosecuted for the same crime based upon the same material facts, if such former prosecution resulted in a conviction or acquittal or if it was terminated improperly.

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