Michael Wayne Nance was indicted in Gwinnett County on charges of murder, felony murder, aggravated assault, theft by taking, criminal attempt to commit armed robbery, and possession of a firearm during the commission of a felony. The State has filed its notice of intent to seek the death penalty. The charges arise out of events that occurred after Nance used a handgun to rob a bank on Indian Trail Road in Gwinnett County. Nance pled guilty in federal court to the Gwinnett County bank robbery. 1
It is uncontroverted that the federal district court, in its calculation of Nance's sentence under the United States Sentencing Guidelines, considered Nance's post-robbery conduct, specifically, his murder of Gabor Balogh. Based on the federal sentence, Nance filed a plea of double jeopardy in Gwinnett Superior Court as to the State charges. The trial court denied Nance's plea and he appeals. Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982)
Double jeopardy protects against three types of abuses: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. North Carolina v. Pearce, 395 U. S. 711, 717 (89 SC 2072, 23 LE2d 656) (1969); Moser v. Richmond County Bd. of Commrs., 263 Ga. 63 (428 SE2d 71) (1993)
. Nance clearly was neither prosecuted for nor convicted of the murder offense during the federal proceeding. He argues, however, that because the conduct giving rise to the murder charge was taken into account during the district court's sentencing, he effectively was "punished" for that conduct during the federal proceeding and that, as a result, the State's prosecution is barred under the Federal and State constitutions.
In Witte v. United States, ---- U. S. ---- (115 SC 2199, 132 LE2d 351) (1995), the United States Supreme Court considered and rejected substantially the same argument raised here by Nance. In Witte, the petitioner pled guilty to a marijuana offense that arose in 1991; in calculating his sentence under the United States Sentencing Guidelines, the district court considered petitioner's involvement in a cocaine offense that occurred in 1989-1990 and sentenced him accordingly. The U. S. Supreme Court agreed with the Fifth Circuit Court of Appeals that Witte's subsequent indictment on charges arising out of the 1989-1990 cocaine offenses was improperly dismissed on double jeopardy grounds because a defendant in Witte's situation "is punished, for double jeopardy purposes, only for the offense of which the defendant is convicted." Witte v. United States, supra, 115 SC at 2205. The U. S. Supreme Court clarified that
use of evidence of related criminal conduct to enhance a defendant's sentence for a separate crime within the authorized statutory limits does not constitute punishment for that conduct within the meaning of the Double Jeopardy Clause.
Id., 115 SC at 2206. The U. S. Supreme Court rejected petitioner's argument that a defendant has suffered multiple punishments for double jeopardy purposes any more now under the Sentencing Guidelines, where relevant conduct is included in the calculation of his offense level, than before, when a pre-Guidelines court was authorized in its discretion to take similar uncharged conduct into account. Id., 115 SC at 2207.
To the extent that the Guidelines aggravate punishment for related conduct outside the elements of the crime on the theory that such conduct bears on the "character of the offense," the offender is still punished only for the fact that the present offense was carried out in a manner that warrants increased punishment, not for a different offense (which that related conduct may or may not constitute).
Id., 115 SC at 2207-2208. Accordingly, the U. S. Supreme Court concluded that
where the legislature has authorized such a particular punishment range for a given crime, the resulting sentence within that range constitutes punishment only for the offense of conviction for purposes of the double jeopardy inquiry.
Id., 115 SC at 2208.
Our review of the district court's sentence reveals that it was within the authorized statutory limit for the crime for which Nance was convicted in federal court. 2
Therefore, we conclude that the instant prosecution for Nance's post-robbery conduct is not barred by the double jeopardy clauses in either the Federal or Georgia constitutions as a second attempt to punish Nance for the same crime. The trial court did not err by denying Nance's plea in double jeopardy.
Daniel J. Porter, District Attorney, Phil Wiley, Karen E. Reed, Assistant District Attorneys, Michael J. Bowers, Attorney General, for appellee.