James V. Sullivan was indicted by a Fulton County grand jury in 1998 on charges of malice murder, felony murder, aggravated assault and burglary arising out of the 1987 shooting death of his wife, Lita Sullivan.1 The State has filed notice of its intent to seek the death penalty. Sullivan was previously tried and acquitted in 1992 in Federal district court on charges that he violated 18 USCS § 1952A use of interstate commerce facilities in the commission of murder-for-hire. Sullivan filed a motion contending, inter alia, that because of his acquittal on the Federal charges, the State was barred by OCGA § 16-1-8 c from prosecuting him on the State charges. The trial court denied Sullivan’s motion and we granted his petition for interim review in order to address this ruling. We conclude that OCGA § 16-1-8 c does not bar the State from prosecuting Sullivan because the Federal prosecution was for a crime not within the concurrent jurisdiction of this State. Accordingly, we affirm the trial court. 1. OCGA § 16-1-8 c provides that a prosecution is barred if the accused was formerly prosecuted in a district court of the United States for a crime which is within the concurrent jurisdiction of this state if such former prosecution resulted in either a conviction or an acquittal and the subsequent prosecution is for the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution or unless the crime was not consummated when the former trial began. The plain language of OCGA § 16-1-8 c creates an unambiguous threshold question: was the prior Federal prosecution for a crime within the concurrent jurisdiction of the State When that question is answered in the negative, OCGA § 16-1-8 c presents no bar to a subsequent State prosecution. Unless the former Federal prosecution was for a crime which is within the concurrent jurisdiction of this State, OCGA § 16-1-8 c is inapplicable regardless of any overlap in the accused’s conduct that is the subject matter of the two prosecutions.2 Accord Dorsey v. State , 237 Ga. 876, 877 230 SE2d 307 1976 bar in subsection c applies only if former prosecution was “for a crime over which the federal court had jurisdiction and over which the superior court had concurrent jurisdiction”.
Concurrent jurisdiction is “jurisdiction exercised by different courts, at the same time, over the same subject matter, and within the same territory, and wherein litigants may, in the first instance, resort to either court indifferently.” Black’s Law Dictionary 264 5th ed. 1979. However, in the context of OCGA § 16-1-8 c, “concurrent jurisdiction” does not mean that the State must stand on equal footing with the Federal authorities and be able to prosecute an accused in a state court for violation of the Federal statute, in the same manner that Georgia civil courts can entertain causes of action arising solely out of Federal civil law.3 Such a literal reading of OCGA § 16-1-8 c would effectively repeal the statute altogether. See 18 USC § 3231 United States district courts “shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States”. Under that same rationale, a Federal statute need not expressly preclude the State from prosecuting an accused in a state court under any applicable counterpart in the Criminal Code of Georgia in order to find that no concurrent jurisdiction exists.
