Lemon v. State

Court of Appeals of Georgia

Lemon v. State

341 S.E.2d 236, 177 Ga. App. 744, 1986 Ga. App. LEXIS 1534

CourtCourt of Appeals of Georgia

DecidedJanuary 22, 1986

Docket71736

StatusPublished

This text of 341 S.E.2d 236 (Lemon v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lemon v. State, 341 S.E.2d 236, 177 Ga. App. 744, 1986 Ga. App. LEXIS 1534 (Ga. Ct. App. 1986).

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Opinion

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 SE2d 622) (1984). Compare McCannon v. State, 252 Ga. 515 (315 SE2d 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.

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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 SE2d 622) (1984). Compare McCannon v. State, 252 Ga. 515 (315 SE2d 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.

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Bluebook (online)

341 S.E.2d 236, 177 Ga. App. 744, 1986 Ga. App. LEXIS 1534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lemon-v-state-gactapp-1986.

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