2021 Georgia Code
Title 16 - Crimes and Offenses
Chapter 1 - General Provisions
§ 16-1-8. When Prosecution Barred by Former Prosecution

1. A prosecution is barred if the accused was formerly prosecuted for the same crime based upon the same material facts, if such former 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 court without a jury, after the first witness was sworn but before findings were rendered by the trier of facts or after a plea of guilty was accepted by the court.
2. A prosecution is barred if the accused was formerly prosecuted for a different crime or for the same crime based upon different facts, if such former prosecution:
   1. Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime of which the accused could have been convicted on the former prosecution, is for a crime with which the accused should have been charged on the former prosecution (unless the court 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 consummated 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 former prosecution had not been terminated improperly.
3. 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.
4. A prosecution is not barred within the meaning of this Code section if:
   1. The former prosecution was before a court which lacked jurisdiction over the accused or the crime; or
   2. Subsequent proceedings resulted in the invalidation, setting aside, reversal, or vacating of the conviction, unless the accused was thereby adjudged not guilty or unless there was a finding that the evidence did not authorize the verdict.
5. Termination under any of the following circumstances is not improper:
   1. The accused consents to the termination or waives by motion to dismiss or other affirmative action his right to object to the termination; or
   2. The trial court finds that the termination is necessary because:
      1. It is physically impossible to proceed with the trial;
      2. Prejudicial conduct in or out of the courtroom makes it impossible to proceed with the trial without injustice to the defendant;
      3. The jury is unable to agree upon a verdict; or
      4. False statements of a juror on voir dire prevent a fair trial.

(Code 1933, § 26-507, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1982, p. 3, § 16.)

- Multiple jeopardy, U.S. Const., amend. 5 and Ga. Const. 1983, Art. I, Sec. I, Para. XVIII.

- For survey article on criminal law and procedure for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 117 (2003). For comment, "Grady v. Corbin: An Unsuccessful Effort to Define Same Offense," see 25 Ga. L. Rev. 143 (1990).

ANALYSIS

• General Consideration
• Offenses Arising from Same Conduct
• Motion to Dismiss
• Reversal of Conviction for Insufficient Evidence
• Retrial
• Jurisdictional Issues
• Application Generally

OPINIONS OF THE ATTORNEY GENERAL

Separate prosecutions for municipal and state law prosecutions.

- An accused arrested for separate non-included offenses arising out of a single transaction, which violate municipal ordinances and state law respectively, may be prosecuted first in the recorder's court for the municipal ordinance violations, and then transferred to the superior court to be prosecuted for the separate state violations, without violating statutory or constitutional double jeopardy prohibitions. 1986 Op. Att'y Gen. No. U86-32.

RESEARCH REFERENCES

Am. Jur. 2d.

- 16B Am. Jur. 2d, Constitutional Law, § 643 et seq. 21 Am. Jur. 2d, Criminal Law, §§ 269 et seq., 315 et seq., 323 et seq. 75B Am. Jur. 2d, Trials, § 1407 et seq.

- 22 C.J.S., Criminal Procedure and Rights of the Accused, § 212. 22A C.J.S. Criminal Procedure and Rights of the Accused, § 605 et seq.

- Conviction or acquittal of larceny as bar to prosecution for burglary, 19 A.L.R. 626.

Pendency in one county of charge of larceny as bar to subsequent charge in another county of offense which involves both felonious breaking and felonious taking of same property, 19 A.L.R. 636.

Conviction or acquittal upon charge of murder of, or assault upon, one person as bar to prosecution for like offense against another person at the same time, 20 A.L.R. 341; 113 A.L.R. 222.

Acquittal or conviction of one offense in connection with operation of automobile as bar to prosecution for another, 44 A.L.R. 564; 172 A.L.R. 1053.

Illness or death of member of juror's family as justification for declaring mistrial and discharging jury in criminal case, 53 A.L.R. 1062.

Award of venire de novo or new trial after verdict of guilty as to one or more counts and acquittal as to another as permitting retrial or conviction on latter count, 80 A.L.R. 1106.

Discharge on habeas corpus after conviction as affecting claim or plea of former jeopardy, 97 A.L.R. 160.

Impersonation or false statement by juror as to his identity as ground for new trial, 127 A.L.R. 717.

Conviction or acquittal in criminal prosecution as bar to action for statutory damages or penalty, 42 A.L.R.2d 634.

Conviction of lesser offense as bar to prosecution for greater on new trial, 61 A.L.R.2d 1141.

Conviction from which appeal is pending as bar to another prosecution for same offense, 61 A.L.R.2d 1224.

Propriety, and effect as double jeopardy, of court's grant of new trial on own motion in criminal case, 85 A.L.R.2d 486.

Prejudicial effect of prosecuting attorney's argument to jury that people of city, county, or community want or expect a conviction, 85 A.L.R.2d 1132.

Prosecution for robbery of one person as bar to subsequent prosecution for robbery of another person committed at the same time, 51 A.L.R.3d 693.

Former jeopardy: Propriety of trial court's declaration of mistrial or discharge of jury, without accused's consent, on ground of prosecution's disclosure of prejudicial matter to, or making prejudicial remarks in presence of, jury, 77 A.L.R.3d 1143.

Propriety and prejudicial effect of informing jury that accused has taken polygraph test, where results of test would be inadmissible in evidence, 88 A.L.R.3d 227.

Propriety and prejudicial effect of prosecutor's argument to jury indicating his belief or knowledge as to guilt of accused - modern state cases, 88 A.L.R.3d 449.

Acquittal of criminal charges other than contempt as precluding contempt proceedings relating to same transaction, 88 A.L.R.3d 1089.

Acquittal as bar to prosecution of accused for perjury committed at trial, 89 A.L.R.3d 1098.

Propriety and prejudicial effect of prosecutor's argument to jury indicating that he has additional evidence of defendant's guilt which he did not deem necessary to present, 90 A.L.R.3d 646.

Propriety and prejudicial effect of prosecutor's argument giving jury impression that judge believes defendant guilty, 90 A.L.R.3d 822.

Instructions urging dissenting jurors in state criminal case to give due consideration to opinion of majority (Allen charge) - modern cases, 97 A.L.R.3d 96.

Conviction or acquittal in federal court as bar to prosecution in state court for state offense based on same facts - modern view, 18 A.L.R.4th 802.

Effect of juror's false or erroneous answer on voir dire in personal injury or death action as to previous claims or actions for damages by himself or his family, 38 A.L.R.4th 267.

Conviction or acquittal in federal court as bar to prosecution in state court for state offense based on same facts - modern view, 97 A.L.R.5th 201.