The double jeopardy clause of the Fifth Amendment to the United States Constitution provides that no person shall be subject for the same offense to be twice put in jeopardy of life or limb. Dahlman v. State, 311 Ga. App. 465 (2011).
Multiple Crimes
Under OCGA § 16-1-7, a defendant may be prosecuted for more than one crime based upon the same conduct. He may not however, be able to be convicted and punished for both crimes. Further, if several crimes arising from the same conduct are known to the proper prosecuting officer at the time of beginning the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution unless the judge grants a severance of offenses. This provision was "designed to protect an accused against the harassment of multiple prosecutions arising from the same conduct." Waites v. State, 238 Ga. 683 (1977).
Same Crime
Under O.C.G.A. § 16-1-8, a prosecution is barred if the accused was formerly prosecuted for the same crime based upon the same material facts, if the earlier prosecution: (1) Resulted in either a conviction or an acquittal; or (2) Was terminated improperly after the jury was impaneled and sworn or, in a trial before a judge without a jury, after the first witness was sworn or after a plea of guilty was accepted by the court.
In determining whether two offenses arise from the same conduct or transaction, Georgia courts have considered whether the two crimes involve the same parties, circumstances, locations, and times. State v. Stewart, 317 Ga. App. 82 (2012).
Different Crimes
A prosecution is barred if the defendant was already prosecuted for a different crime or for the same crime based upon different facts, if the earlier prosecution: (1) Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime of which the defendant could have been convicted during the earlier prosecution, is for a crime with which the defendant should have been charged as a part of the former prosecution (unless the judge ordered a separate trial of such charge), or is for a crime which involves the same conduct, unless each prosecution requires proof of a fact not required on the other prosecution or unless the crime was not finished when the former trial began; or (2) Was terminated improperly and the subsequent prosecution is for a crime of which the accused could have been convicted if the earlier prosecution had not been terminated improperly.
A trial is not improperly terminated if: (1) The defendant consents to the termination or waives by some action his right to object to the termination; or (2) The judge finds that the termination is necessary because: (A) It is physically impossible to proceed with the trial; (B) Prejudicial conduct in or out of the courtroom makes it impossible to proceed with the trial without injustice to the defendant; (C) The jury is unable to agree upon a verdict; or (D) False statements of a juror during jury selection prevent a fair trial.
Federal / State
When a person in a single act breaks the law of two sovereigns, such as the United States and the State of Georgia, the person has committed two distinct offenses and may be prosecuted and punished by each sovereign. This is called the doctrine of dual sovereignty. Successive prosecutions by two separate sovereigns does not violate double jeopardy. Georgia law limits dual sovereignty. O.C.G.A. § 161-8(c). The question is whether the prior federal prosecution was for a crime that was within the concurrent jurisdiction of Georgia. Sullivan v. State, 279 Ga. 893 (2005).
A prosecution is barred if the defendant was formerly prosecuted in federal court for a crime which is within the concurrent jurisdiction of Georgia 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 finished when the former trial began.
A second prosecution is not barred if: (1) The court had no jurisdiction; or (2) The defendant's conviction was reversed or set aside, unless there was a finding that the evidence was not sufficient to support the conviction.
Insufficient Evidence There is no basis in Georgia criminal practice for a motion seeking to dismiss an indictment on the ground that the State cannot prove facts essential to the charge. State v. Benton, 305 Ga. App. 332 (2010).