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SAMUEL v. THE STATE.
77496.
POPE, Judge.
Drug violation. Clayton Superior Court. Before Judge Crumbley.
This interlocutory appeal comes from the trial court's denial of appellant's motion to dismiss the indictment. Appellant argues that the indictment violates double jeopardy as well as OCGA 16-1-7 (b) and 16-1-8 (b) (1). In February 1986, appellant was convicted of trafficking in cocaine after a bench trial at which he stipulated the evidence against him. That conviction was affirmed in Samuel v. State, 181 Ga. App. XXIX (Case No. 73315, unpublished opinion) (1986). This conviction was vacated later on a petition for habeas corpus upon the authority of Robinson v. State, 256 Ga. 564 (350 SE2d 464) (1986). Appellant was then indicted in the present case for trafficking in cocaine by being in possession of more than 400 grams of cocaine.
Appellant's argument that the second indictment constitutes double jeopardy must fail. "The general rule is that retrial of the defendant is not barred where reversal of the conviction results from trial error rather than evidentiary insufficiency." Williams v. State 258 Ga. 305, 311 (369 SE2d 232) (1988). Reversal based upon a faulty or flawed indictment is a reversal based upon "trial error." Burks v. United States, 437 U. S. 1, 13-14 (98 SC 2141, 57 LE2d 1) (1978). The court in Burks recognized that retrial of a defendant whose conviction has been set aside for error in the proceedings is not only proper and not violative of double jeopardy principles, but also that this has long been part of our law. Burks at 14.
2. Nor is appellant's retrial prohibited by the statutory prohibitions against multiple prosecutions found in OCGA 16-1-7 and 16-1-8. OCGA 16-1-8 (d) (2) specifically permits retrial where a conviction is set aside on appeal for reasons other than the sufficiency of the evidence. See generally Price v. State, 187 Ga. App. 239 (370 SE2d 6) (1988).
Robert E. Keller, District Attorney, Clifford A. Sticher, Assistant District Attorney, for appellee.
Herbert Shafer, for appellant.
DECIDED FEBRUARY 21, 1989 -- REHEARING DENIED MARCH 1, 1989 -- CERT. APPLIED FOR.
Thursday May 21 11:34 EDT


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