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- Where a defendant engaged in two separate courses of conduct, the attempt to sell marijuana to an undercover police officer and the possession of 12 pounds of marijuana at defendant's home, double jeopardy did not attach to the second prosecution, as these acts occurred at different times and locations with distinct quantities of contraband, even though defendant might have at some earlier time possessed all the marijuana in defendant's home. Kinchen v. State, 265 Ga. App. 474, 594 S.E.2d 686 (2004).
- Double jeopardy did not attach to bar prosecution of defendant on state drug charges following federal civil forfeiture proceedings because defendant's failure to contest the forfeiture meant defendant was not placed in jeopardy in those proceedings and, also, Georgia constitutional and statutory provisions did not bar the prosecution because they apply only to criminal proceedings, not civil proceedings. Waye v. State, 219 Ga. App. 22, 464 S.E.2d 19 (1995).
Accused may be convicted of a crime included in a crime charged in the indictment or accusation, and that a crime is so included when it is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged. Morast v. State, 323 Ga. App. 808, 748 S.E.2d 287 (2013).
If the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of law, and the defendant may not be sentenced for both. Chadwick v. State, 236 Ga. App. 199, 511 S.E.2d 286 (1999).
- Supreme Court of Georgia utilizes more lenient alternative test, rather than narrower conjunctive standard prevailing in federal courts. A crime is included within another if, as a matter of fact or, alternatively, as a matter of law, conditions stipulated by former Code 1933, 26-505 are satisfied. The conjunctive test requires that conditions be satisfied both as a matter of fact and as a matter of law before one crime will be held to be included within another. Ramsey v. State, 145 Ga. App. 60, 243 S.E.2d 555, rev'd on other grounds, 241 Ga. 426, 246 S.E.2d 190 (1978).
Actual evidence test meant that if the state used up all the evidence that the defendant committed one crime in establishing another crime, the former crime was included in the latter as a matter of fact under O.C.G.A. 16-1-6. Ruffin v. State, 252 Ga. App. 289, 556 S.E.2d 191 (2001).
Question of whether there was a factual merger of crimes is determined by looking to the actual evidence introduced at trial to determine whether a crime is established by proof of the same or fewer than all the facts required to establish the commission of another crime within the meaning of O.C.G.A. 16-1-6; if the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact under O.C.G.A. 16-1-6. Brewster v. State, 261 Ga. App. 795, 584 S.E.2d 66 (2003).
- When the state sought to prosecute the defendant on two offenses in a single prosecution, one of which is included in the other, and the defendant receives a mistrial on the greater offense, the remaining conviction of the lesser offense does not bar retrial of the greater offense. Bell v. State, 249 Ga. 644, 292 S.E.2d 402 (1982).
- Court did not err in failing to instruct the jury to decide which one of the offenses charged in the indictment or of the lesser included offense to find defendant guilty of. There was no issue of fact as to whether one crime was included in another and the court was not required to charge on O.C.G.A. 16-1-6. Leslie v. State, 211 Ga. App. 871, 440 S.E.2d 757 (1994).
- Even if a lesser offense is not included in a charged offense as a general matter because the two offenses have different elements, the lesser offense may be an included offense in a particular case if the facts alleged in the indictment and the evidence presented at trial to establish the charged offense are sufficient to establish the lesser offense as well. Messick v. State, 209 Ga. App. 459, 433 S.E.2d 595 (1993).
- After a jury convicted a defendant on an aggravated battery charge, but acquitted the defendant on charges of obstruction, simple battery, and aggravated assault and could not reach a verdict on a second charge of aggravated assault, the jury's inability to reach a verdict on the second aggravated assault charge, a lesser included offense, did not invalidate the jury verdict on the aggravated battery charge. Collier v. State, 195 Ga. App. 380, 393 S.E.2d 509 (1990).
- As a matter of law a defendant is on notice of lesser crimes which are included in the crime charged, and the defendant's due process rights were therefore not violated where remand for an adjudication of delinquency was made, based on a lesser included offense, after vacation of a conviction on the more serious offense. In re A.F., 236 Ga. App. 60, 510 S.E.2d 910 (1999).
Trial court did not err in failing to merge the defendant's convictions for the criminal damage to property in the first degree and criminal damage to property in the second degree because, although the charges were defined by degrees, the statutes prohibited different risks of injury - knowing interference with property in a manner that endangered human life and a certain level of damage to the property. Sullivan v. State, 331 Ga. App. 592, 771 S.E.2d 237 (2015).
- Statutes pertaining to lesser included offenses and multiple prosecutions for the same conduct do not purport to make any offense a greater offense, either as a matter of law or fact, solely because violation thereof mandates or otherwise results in the imposition of a greater sentence, or to make any offense a lesser included offense merely because a lesser sentence was statutorily authorized for the statute's violation. Hancock v. State, 210 Ga. App. 528, 437 S.E.2d 610 (1993).
- Aggravated assault and armed robbery differ in more ways than that a less serious injury or risk of injury or a lesser kind of culpability, applies to one crime than the other. Thus, aggravated assault is not included in armed robbery as a matter of law. Harvey v. State, 233 Ga. 41, 209 S.E.2d 587 (1974).
Conviction for aggravated assault did not merge with conviction for armed robbery where the evidence showed that the defendant had completed the armed robbery at the time defendant assaulted the security guard. Loumakis v. State, 179 Ga. App. 294, 346 S.E.2d 373 (1986).
Offenses of aggravated assault and robbery did not merge as a matter of law, where although the occurrences happened within a short span of time, the robbery had been completed at the time defendant fired a gun and involved different actions and intents. Phelps v. State, 194 Ga. App. 493, 390 S.E.2d 899 (1990).
Aggravated assaults did not merge with the robbery of two victims, where the robberies were completed, both victims having been deprived of their property, when they were marched off for another criminal purpose and the aggravated assaults on each victim occurred. Glass v. State, 199 Ga. App. 530, 405 S.E.2d 522 (1991).
In a trial for armed robbery and aggravated assault, the evidence showed that defendant forced the victim at knifepoint to open the safe and that after taking the money from the safe, defendant cut the victim during the victim's attempt to escape. Since the act which constituted the offense of armed robbery was proved without any reference to the act which constituted the aggravated assault, no merger occurred. Holmes v. State, 205 Ga. App. 168, 421 S.E.2d 311 (1992).
Trial court did not err by failing to merge the defendants' convictions on counts one through five into one conviction for armed robbery because the aggravated assaults and armed robbery (none of which could have been proven by the same or less than all the facts required to prove another) occurred later and the facts required to prove those offenses were separate from the burglary. Dunbar v. State, 273 Ga. App. 29, 614 S.E.2d 472 (2005).
Evidence that the victim was beaten over the head with a pistol showed a completed aggravated assault prior to the armed robbery which was also committed with a pistol; in other words, the pistol was used to effect bodily harm as well as to effect a theft. Since separate facts were used to prove each crime, the trial court did not err by refusing to merge the offenses under O.C.G.A. 16-1-6. Bunkley v. State, 278 Ga. App. 450, 629 S.E.2d 112 (2006).
As the armed robberies and aggravated assaults the defendant was charged with were committed against different victims, the crimes did not merge as a matter of law or fact. Verdree v. State, 299 Ga. App. 673, 683 S.E.2d 632 (2009).
Separate convictions for armed robbery and aggravated assault were barred, and conviction for the latter offense would have to be vacated, where the only aggravated assault shown by the evidence was that by which the commission of the armed robbery was effectuated. Young v. State, 177 Ga. App. 756, 341 S.E.2d 286 (1986).
Conviction for aggravated assault should have been vacated pursuant to the doctrine of merger since the only aggravated assault shown by the evidence was that by which the commission of armed robbery was effectuated. There having been no additional, gratuitous violence employed against the victim, it followed that the evidentiary basis for the aggravated assault conviction was "used up" in proving the armed robbery. Kelly v. State, 188 Ga. App. 362, 373 S.E.2d 63 (1988); Head v. State, 202 Ga. App. 209, 413 S.E.2d 533 (1991).