State v. D'Auria

12 Citing cases

  1. D'Auria v. State

    512 S.E.2d 266 (Ga. 1999)   Cited 16 times
    In D'Auria, the indictment charged the defendant with committing sexual battery “by making contact with the intimate body parts” of the victim.

    BENHAM, Chief Justice, dissenting. After persevering through four years of post-conviction pleadings — a granted motion for new trial, two Court of Appeals' decisions ( State v. D'Auria, 222 Ga. App. 615 ( 475 S.E.2d 678) (1996); State v. D'Auria, 229 Ga. App. 34 ( 492 S.E.2d 918) (1997)), a failed interlocutory application, and the denial of three petitions for certiorari, appellant has finally achieved what he has repeatedly sought — a judicial termination of the State's prosecution of him for sexual battery, the charge a jury found him guilty of in 1993. "Based on the facts in this particular case," the majority opinion ensures that appellant will never be prosecuted for his 1992 actions. I respectfully disagree with both the rationale and the result of the majority's action.

  2. Dinning v. State

    267 Ga. 879 (Ga. 1997)   Cited 27 times
    Rejecting argument that where the conduct is malicious and deliberate, that – in and of itself – should be sufficient to invoke the bar of double jeopardy; reiterating that what is critical is the objective of the improper conduct

    However, when a criminal defendant is granted a mistrial or his or her convictions are reversed because the prosecution engages in intentional misconduct purposefully designed to secure an opportunity to retry the case, a retrial will not be permitted. See Oregon v. Kennedy, supra; Williams v. State, supra at 312; and State v. D'Auria, 222 Ga. App. 615, 616 ( 475 S.E.2d 678) (1996). Dinning urges that if the prosecutor's conduct is malicious and deliberate that, in and of itself, should be sufficient to invoke the bar of double jeopardy.

  3. State v. Heggs

    252 Ga. App. 865 (Ga. Ct. App. 2001)   Cited 5 times

    Here, we find that they do not. State v. D'Auria, 222 Ga. App. 615, 616 ( 475 S.E.2d 678) (1996). The primary purpose of the Double Jeopardy Clause is to prohibit the retrial of a criminal defendant where, at the initial trial, the prosecution failed to introduce sufficient evidence to sustain a conviction.

  4. Rogers v. Barnett

    237 Ga. App. 301 (Ga. Ct. App. 1999)   Cited 6 times

    1983 Const., Art. VI, Sec. VI, Par. II (1).' Pruitt v. State, 203 Ga. App. 125, 127 ( 416 S.E.2d 524) (1992)." State v. D'Auria, 222 Ga. App. 615, 617 ( 475 S.E.2d 678) (1996). However, we will not transfer a case to the Supreme Court "unless it clearly appears in the record that the point was distinctly passed upon by the trial court."

  5. Hill v. State

    234 Ga. App. 173 (Ga. Ct. App. 1998)   Cited 11 times

    In reviewing a grant or denial of a double jeopardy plea in bar, this court determines whether, after reviewing the trial court's oral and written rulings as a whole, the trial court's findings support its conclusion. See State v. D'Auria, 222 Ga. App. 615, 616 ( 475 S.E.2d 678) (1996). Under OCGA § 16-1-7 (b), the state is required to prosecute crimes in a single prosecution if the crimes (1) arise from the same conduct, (2) are known to the proper prosecuting officer at the time of commencing the prosecution, and (3) are within the jurisdiction of a single court. A second prosecution is barred under OCGA § 16-1-8 (b) (1) if it is for a crime with which an accused should have been charged in the first prosecution under OCGA § 16-1-7 (b).

  6. State v. Goble

    500 S.E.2d 35 (Ga. Ct. App. 1998)   Cited 4 times

    The appellate standard of review of a grant of a plea in bar of double jeopardy is whether the trial court's findings support its conclusion that the bar should be applied. State v. D'Auria, 222 Ga. App. 615, 616 ( 475 S.E.2d 678) (1996). Reviewing the record as a whole, we find that Goble's single, ambiguous comment in the internal affairs statement was insufficient as a matter of law to affirmatively demonstrate the prosecutor's actual knowledge prior to trial that an act of sodomy had occurred during the alleged assault on the complainant.

  7. Watson v. State

    495 S.E.2d 305 (Ga. Ct. App. 1997)   Cited 9 times

    A premise basic to double jeopardy analysis is that retrial is not barred where reversal of the conviction results from trial error rather than evidentiary insufficiency. State v. D'Auria, 222 Ga. App. 615, 616 ( 475 S.E.2d 678) (1996). Prosecutorial misconduct does not trigger the double jeopardy bar absent a finding that the State's actions were intended to subvert the protections afforded by the Double Jeopardy Clause.

  8. Wilson v. State

    229 Ga. App. 455 (Ga. Ct. App. 1997)   Cited 15 times

    "The appellate standard of review of a grant [or denial] of a double jeopardy plea in bar is whether, after reviewing the trial court's oral and written rulings as a whole, the trial court's findings support its conclusion." State v. D'Auria, 222 Ga. App. 615, 616 ( 475 S.E.2d 678) (1996). Wilson was indicted on one count of theft by taking in the August 1996 Term of the Troup County Superior Court. The ensuing trial resulted in a hung jury, and the court declared a mistrial on October 2, 1996. Wilson was subsequently reindicted on the original count of theft by taking, as well as an additional count of theft by receiving stolen property.

  9. State v. D'Auria

    492 S.E.2d 918 (Ga. Ct. App. 1997)   Cited 13 times
    In D'Auria, it was noted that some defendants have argued, as Jenkins is now doing, that double jeopardy should preclude a defendant's retrial whenever the prosecutors' intentional misconduct is egregious and prejudicial so that it denies the defendant a fair trial.

    The State appealed the grant of defendant's plea in bar, and we remanded, instructing the lower court that even intentional prosecutorial misconduct does not generally preclude retrial, and directing the court to determine whether the prosecutor had intended to subvert the protections afforded by the double jeopardy clause. See State v. D'Auria, 222 Ga. App. 615, 616-617 ( 475 S.E.2d 678) (1996). On remand, the trial court again granted defendant's plea in bar, but this time explicitly determined that the prosecution "intended to unfairly secure a guilty verdict or, in the alternative, cause a retrial," and thereby "clearly subverted defendant's double jeopardy protection."

  10. Washington v. State

    333 Ga. App. 236 (Ga. Ct. App. 2015)   Cited 5 times
    Explaining that "in Georgia, verdicts acquire their legality from return and publication," which occurs "when [the verdict] is agreed upon by the jury, written out, signed by the jury foreperson, and delivered to the clerk, by the direction and in the presence of the judge"

    inspection of the petition handed to him by the foreman of the jury was information which he received as an individual, and not as a judge of the court”; and further holding that, despite violation of defendant's right to receive the verdict that was purportedly reached, the “writing incorporated in the bill of exceptions as a verdict of the jury was in law no verdict, because it was not received in court and published as required by law” and was instead “entirely extraneous and extrajudicial”); see also Ballard v. Turner, 147 Ga.App. 584, 586(3), 249 S.E.2d 637 (1978) (“[When] the verdict was erroneous on its face, [it was] not error to determine from the jury before its dispersal what its true intent had been, to give correct instructions on how the various verdicts might be framed under the evidence, and to return them to the jury room to correct the error.”); McGahee v. Samuels, 61 Ga.App. 773, 773, 7 S.E.2d 611 (1940) ; Brown v. State, 35 Ga.App. 660, 660, 134 S.E. 193 (1926).See State v. D'Auria, 222 Ga.App. 615, 616, 475 S.E.2d 678 (1996) (remanding for further proceedings when State argued that trial court erred in granting defendant's plea in bar for double jeopardy based on allegations of intentional prosecutorial misconduct but trial court failed to address whether or not State had intended to cause a retrial and to subvert defendant's protections under the Double Jeopardy Clause).See Lewis v. State, 275 Ga. 194, 195(1), 565 S.E.2d 437 (2002) (holding that “[i]t is elementary that one may not be a witness and a judge in the same proceeding,” and remanding for a new hearing with a different judge (punctuation omitted)).