SECOND DIVISION

DOYLE, C. J.,

MILLER, P. J, and REESE, J.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

May 8, 2017

In the Court of Appeals of Georgia

A17A0592. MILLSAPS v. THE STATE. DO-019 C

DOYLE, Chief Judge.

After pleading guilty inmunicipal court to reckless driving, resisting an officer,

and speeding, Harvest Adam Millsaps appeals from the denial of his motion to

dismiss on double jeopardy grounds an accusation brought in superior court alleging

separate charges of fleeing or attempting to elude an officer,1 misdemeanor

obstruction of an officer,2

reckless driving,

3

and speeding.

4 He contends that the trial

court erred because (1) the superior court prosecution was barred by OCGA § 16-1-7

1

 OCGA § 40-6-395 (a).

2

 OCGA § 16-10-24 (a).

3

 OCGA § 40-6-390 (a).

4

 OCGA § 40-6-181 (b) (5).
(b), and (2) the subsequent offenses were “included in” the former offenses. For the

reasons that follow, we affirm.

On appeal from the denial of a motion to dismiss on double jeopardy grounds,

we review “the factual findings of the trial court under the standard of clear error, but

this Court . . . independently examine[s] the trial court’s conclusions of law” de

novo.

5

In this case, the relevant facts are undisputed, and the record shows that on

May 22, 2014, the Bartow County Sheriff’s Office issued citations to Millsaps for

several offenses occurring while Millsaps allegedly led police on a high-speed chase

at speeds exceeding 100 miles per hour: fleeing and attempting to elude, reckless

driving, and speeding. These offenses allegedly occurred in unincorporated Bartow

County. On May 23, 2014, the Emerson City Police Department issued traffic

citations to Millsaps for related offenses committed within the city limits: reckless

driving, resisting an officer, and speeding. 

In March 2015, Millsaps appeared in the Emerson Municipal Court and

pleaded guilty to the Emerson citations for reckless driving and resisting an officer,

and the speeding offense merged with the reckless driving offense. In June 2015, the

5

Jenkins v. State, 294 Ga. 506, 508 (1) (755 SE2d 138) (2014).

2
State filed an accusation in the Superior Court of Bartow County alleging separate

occurrences of fleeing or attempting to elude an officer, obstruction, reckless driving,

and speeding. Millsaps then moved to dismiss the accusation on double jeopardy

grounds, and, following a hearing, the superior court denied the motion. Millsaps now

appeals.

1. Millsaps contends that the trial court erred by concluding that his

prosecution was not barred by OCGA § 16-1-7 (b). Under that Code section, when

“several crimes arising from the same conduct are known to the proper prosecuting

officer at the time of commencing the [first] prosecution and are within the

jurisdiction of a single court, they must be prosecuted in a single prosecution except

as provided in subsection (c) of this Code section,” which subsection does not apply

here.6

Millsaps’s appeal focuses on the requirement that the prosecuting officer

“know” of the other crimes arising from the same conduct. Millsaps’s burden is to

show in the record “that the prosecuting attorney . . . who handled the first

prosecution had actual knowledge of the factssupporting the charge allegedly subject

6 Subsection (c) provides: “When two or more crimes are charged as required

by subsection (b) of this Code section, the court in the interest of justice may order

that one or more of such charges be tried separately.”

3
to a [double jeopardy defense],”7

i.e.,the fleeing, obstruction, reckless driving, and

speeding that occurred outside of the city limits of Emerson.

Millsaps relies on Billups v. State,

8 which held that the prosecutor was

expected, “as an expert in the law,” to know of the several crimes arising from the

facts and evidence actually known to her.9 Millsaps argues that the municipal court

prosecutor had actual knowledge of all of the factssupporting the subsequent charges

in superior court, so he argues that the trial court erred by concluding that the

municipal court prosecutor did not know of the crimes arising from the same

transaction for which he was punished for in municipal court.

Millsaps’s argument is not borne out by the record. The evidence in the record

is limited to the actual citations issued by the Emerson Police Department and the

testimony of the municipal court prosecuting attorney. Those citations make no

mention of conduct occurring outside of Emerson, and the prosecutor explained that

7

(Punctuation and emphasis omitted.) State v. Hill, 333 Ga. App. 785, 787 (777

SE2d 265) (2015), quoting Nicely v. State, 305 Ga. App. 387, 388 (1) (699 SE2d 774)

(2010).

8

 228 Ga. App. 804 (493 SE2d 8) (1997).

9

Id. at 808 (1) (c) (“The prosecutor in this case read the arrest report[,] and she

actually knew all the facts and evidence of appellant’s conduct.”).

4
the only way cases come to him is by way of a citation issued by the city. Any state

warrants or reports associated with this case did not and would not have gone to him.

Therefore, even though each of the offenses at issue in this case arose from the same

transaction, there is no evidence that the municipal prosecutor was aware of the

factual basis for the offenses occurring outside of Emerson. 

In this circumstance, the trial court correctly relied on State v. Hill,

10

in which

this Court reversed the grant of a plea in bar. In Hill, due to a clerical mistake, a

citation for having an expired tag was somehow separated from related charges for

driving under the influence (“DUI”) and following too closely. Hill pleaded guilty to

the expired tag charge in recorder’s court, whereasthe DUI and following-too-closely

charges were bound over to the state court. Even though all of those charges arose

from the same transaction, the expired-tag file available to the prosecutor in

recorder’s court did not reveal to that prosecutor the facts supporting the other

offenses (DUI and following too closely). Accordingly, this Court held that the trial

10

 333 Ga. App. 785 (777 SE2d 265) (2015).

5
court erred by concluding that the prosecutor in recorder’s court had actual

knowledge of the facts supporting the other crimes pending in state court.

11

As in Hill, there is no evidence that the municipal court prosecutor had actual

knowledge of the criminal conduct taking place outside of the city limits, however

related that conduct wasto the Emerson charges.

12 Accordingly, Millsaps’s argument

is without merit.

2. Millsaps also contends that the second prosecution is barred because those

offenses were “included in” the offensesfrom the former prosecution. Millsapsrelies

on the “required evidence” test adopted in Drinkard v. Walker13to argue that the

subsequent offenses were included in the former offenses. But that analysis “does not

11 See id. at 789. See also Sellers v. State, 332 Ga. App. 14, 18 (770 SE2d 31)

(2015) (holding that a second felony prosecution was not barred because “the

disposition form [available in the first prosecution] was legally insufficient to show

that the solicitor-general handling Sellers’s guilty plea in state court actually knew

that there were felony [drug] offenses arising out of the same conduct as the

misdemeanor traffic offense.”).

12 See Sellers, 332 Ga. App. at 18. Compare Dean v. State, 309 Ga. App. 459,

461-462 (711 SE2d 42) (2011) (defense counsel advised prosecutor of other pending

charges); Nicely, 305 Ga. App. at 390 (1).

13

 281 Ga. 211, 215 (636 SE2d 530) (2006).

6
apply unless the same conduct of the accused establishes the . . . multiple crimes.”14

Even though the offenses allegedly were part of the same police chase, the record

before usis unclear asto the precise factual predicates of each offense, and it does not

show that the superior court accusation is predicated on the same conduct as the

municipal offenses. For example, the obstruction and resisting arrest charges each

involve different victims, so it is clear that one of those offensesis not included in the

other.15 Also, it appears from the record that the two prosecutions focus on conduct

occurring at different points in the police chase, and absent anything in the record

clearly demonstrating otherwise, Millsaps has failed at this time to meet his burden

to show that any of the superior court offenses were included in the municipal court

offenses. 

Judgment affirmed. Miller, P. J., and Reese, J., concur.

14

(Emphasis supplied.) Robertson v. State, 306 Ga. App. 721, 725 (4) (703

SE2d 343) (2010).

15 See Culbreath v. State, 328 Ga. App. 153, 157 (2) (b) (i) (761 SE2d 557)

(2014) (holding that two offenses against two different victims did not merge).

7