Can I be prosecuted in both federal and state court for basically the same crime?
Pursuant to OCGA 16-1-8 C, an accused who has been formally prosecuted in federal court may not be prosecuted in state court 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. The statute does not oust the Georgia courts from jurisdiction, but merely bars a second trial for an offense previously tried in federal court. For example, where a defendant is indicted in both federal and state court for crimes arising out of the same transaction, to wit, bank robbery, and he pleads guilty and his sentence in federal court, he may not thereafter be tried in state court for crime arising out of the bank robbery. Dorsey v. State to 37 Ga. 876 (1976) in Sullivan v. State 279 Ga. 893 (2005), the Georgia Supreme Court concluded that OCGA 16-1-8 (C) would not bar the State from trying the defendant for malice and felony murder even though the defendant had been acquitted of murder for hire charges involving the same victim and event in federal court. The court ruled that unless the federal prosecution was for crime over which the state had concurrent jurisdiction, double jeopardy had no application. The court found that the interstate commerce and communication elements of the federal law precluded a finding of such jurisdiction. There is no comparable federal statute to prevent a prosecution in federal court after prosecution in state court for substantially the same crime. However, United States Department of Justice has adopted a policy of not prosecuting an accused for essentially the same crime after he has been prosecuted by a state. This policy is known as the petite policy after the case of petite v. United States 361 U.S. 529 (1960). The Federal Constitution does not prevent the state or the federal government from prosecuting a defendant after he has been prosecuted by the other for substantially the same crime. Bartkus v. Illinois 359 U.S. 121 (1959). In Heath v. Alabama 474 U.S. 82 (1985) the United States Supreme Court held that Double Jeopardy Clause was not violated where defendant pled guilty to malice murder in Georgia and was given a life sentence, and then an Alabama court tried convicted and sentenced the defendant to death for murder during a kidnapping arising out of the same course of conduct. In State v. Gilder, 145 Ga. App. 731 (1978), the defendant pled guilty to driving under the influence in state court. He was later indicted in Superior Court as a habitual violator. The court held that the defendant’s plea in bar was valid, since the habitual violator charge which was a felony was based in part on the driving under the influence case, and the election by the State to charge the defendant with a misdemeanor prevented the later indictment based in part on the earlier case. Contact a Paulding County criminal defense lawyer for representation when facing criminal charges.