| [1] | COURT OF APPEALS OF GEORGIA |
| [2] | No. 71736 |
| [3] | 1986.GA.117 <http://www.versuslaw.com>, 341
S.E.2d 236, 177 Ga. App. 744 |
| [4] | January 22, 1986 |
| [5] | LEMON v. THE STATE |
| [6] | Simple battery. Richmond State Court. Before Judge
Fleming. |
| [7] | Rehearing Denied February 10, 1986. Certiorari Applied
for. |
| [8] | Herbert E. Kernaghan, Jr., for appellant. |
| [9] | Michael C. Eubanks, Solicitor, for appellee. |
| [10] | The opinion of the court was delivered by: Banke |
| [11] | BANKE, Chief Judge. |
| [12] | 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). |
| [13] | Held |
| [14] | 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. |
| [15] | Judgment affirmed. |
| [16] | BIRDSONG, P.J., and SOGNIER, J., concur. |