Lemon v. State

Full title: LEMON v. THE STATE

Court: Court of Appeals of Georgia

Date published: Jan 22, 1986

341 S.E.2d 236 (Ga. Ct. App. 1986)

341 S.E.2d 236

Opinion

71736.

DECIDED JANUARY 22, 1986. REHEARING DENIED FEBRUARY 10, 1986.

Simple battery. Richmond State Court. Before Judge Fleming.

Herbert E. Kernaghan, Jr., for appellant.

Michael C. Eubanks, Solicitor, for appellee.

BANKE, Chief Judge.

The defendant appeals the denial of his plea of former jeopardy in a prosecution for simple battery. The offense was alleged to have occurred on August 24, 1983. The basis for the former jeopardy plea was his acquittal in December of 1984 of a similar offense which allegedly took place in June of 1983 but which involved a different victim. The defendant contends that, because the solicitor knew of the alleged offense at issue in the present case prior to the previous prosecution, the present charge is one which "should have been tried on the former prosecution" within the meaning of OCGA § 16-1-8 (b) (1). Held:

Although the two charges against the defendant involved similar conduct, they could in no way be described as arising from the same conduct. Thus, the present prosecution is not barred by the former. See Welch v. State, 172 Ga. App. 476, 477 ( 323 S.E.2d 622) (1984). Compare McCannon v. State, 252 Ga. 515 ( 315 S.E.2d 413) (1984). It follows that the trial court did not err in denying the plea of former jeopardy.

Judgment affirmed. Birdsong, P. J., and Sognier, J., concur.

BANKE, Chief Judge.

DECIDED JANUARY 22, 1986 — REHEARING DENIED FEBRUARY 10, 1986 CERT. APPLIED FOR.