Multiple Prosecutions for Same Conduct in Georgia

Multiple prosecutions for the same conduct in Georgia is commonly known as double jeopardy. Many people are familiar with the term double jeopardy, but few people actually understand the concept. Double jeopardy protects people from being charged twice for the same criminal act and is a protection guaranteed to United States citizens under the Fifth Amendment to the U.S. Constitution. The purpose of the Fifth Amendment is to protect defendants from the harassment of multiple prosecutions arising from the same conduct. It only applies to criminal cases, which means that if a person is found guilty of a crime in criminal court, he cannot be tried in criminal court again. However, the family of the victim could sue the defendant in civil court to recover damages if applicable. An example is if a person was convicted of manslaughter in criminal court. The family could still sue the person in civil court for a wrongful death suit to recover damages. Double jeopardy includes all felonies, misdemeanors, and juvenile convictions.

Georgia Law O.C.G.A. §16-1-7 reads as follows:

When the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if:

1. One crime is included in the other; or
2. The crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.

Under the statute, the accused may be prosecuted for two crimes based on the same conduct, but they may not be convicted of more than one crime if one crime is included in the other. For example, a person can be not convicted of assault and robbery because elements of assault are included in the robbery charge.

The primary consideration is whether or not the offenses arose from the same transaction. If they do not, then it is not considered double jeopardy when charged with the two separate crimes. Furthermore, while the statute prohibits multiple convictions for the same conduct, it also provides that when the same conduct of the accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. Lunsford v. State, 260 Ga. App. 818, (2003).

Georgia Case Law

Countless examples can be found in Georgia's case law on how Court's have refused to allow a person to be subject to double jeopardy:

• A defendant cannot be sentenced for both malice and felony murder under O.C.G.A. §16-1-7. Nix v. State, 280 Ga. 141, (2006).
• A man was prosecuted for both rape and child molestation based on the same conduct, but the Court ruled that he could not be convicted of both crimes because one crime is included in the other. Mackey v. State, 235 Ga. App. 509, (1998).

Situations where the defendant was charged with two crimes, and it did not violate double jeopardy include:

• A man was convicted of both aggravated assault and rape arising from the same incident and the Court upheld both convictions. Taylor v. State, 177 Ga. App. 624, (1986).
• The suspect was arrested for attempt to sell marijuana and possession of marijuana. He argued that he should only be prosecuted for one of the crimes but the Court found that the two instances occurred at different times and locations and therefore it was not double jeopardy for him to be charged with both crimes. Kinchen v. State, 265 Ga. App. 474, (2004).

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If you have been arrested or charged with a crime and believe that you should not be charged because it would violate the double jeopardy provision, contact our offices today for a free case evaluation. Your best defense begins now, and there is no time to waste. Lawson and Berry and our team of Georgia Criminal Defense Attorneys are here 24 hours a day, 7 days a week. Contact us today.