THE STATE v. PERKINS, 256 Ga. App. 855

Ellington, Judge. The State appeals an order of the Whitfield County Superior Court sustaining William Thomas Perkins’ plea of former jeopardy and barring the instant vehicular homicide prosecution. Because this prosecution is barred by Perkins’ prior conviction of the underlying lesser included offense of reckless driving, we affirm. 1. On November 2, 2000, Perkins was involved in an automobile collision that resulted in the death of Brenda Joyce Crider. A sheriff’s deputy arrested Perkins and charged him in separate citations with vehicular homicide and reckless driving.

Even though the deputy wrote “Superior Court” on the reckless driving citation, the Whitfield County Probate Court processed the citation instead of binding it over. On November 7, 2000, deputies took Perkins from jail to answer the reckless driving charge. Without benefit of counsel, 18-year-old Perkins pleaded guilty to the charge and was convicted of the offense. On April 24, 2001, the district attorney indicted Perkins for reckless driving, OCGA § 40-6-390 (a), and for felony vehicular homicide, OCGA § 40-6-393 (a). At arraignment, Perkins filed a plea in bar on former jeopardy grounds.

The district attorney responded with a motion to set aside Perkins’ prior reckless driving conviction based upon OCGA § 40-6-376 (d). The trial court sustained the plea in bar, and the State timely brought this appeal under OCGA § 5-7-1 (a) (3). The State does not contest that, but for the application of OCGA § 40-6-376, the instant prosecution would be barred on former jeopardy grounds. As the superior court correctly found, Perkins’ reckless driving conviction is a lesser included offense of the vehicular homicide offense for which he was indicted. Brock v. State, 146 Ga.

App. 78, 82 (245 SE2d 442) (1978); OCGA §§ 16-1-6; 40-6-390; 40-6-393 (a). “[A] conviction on a lesser-included offense bars subsequent trial on the greater offense.” (Citations and punctuation omitted.) State v. Burroughs, 246 Ga. 393, 394 (271 SE2d 629) (1980); see also OCGA §§ 16-1-7 (a) (1); 40-6-376 (c). The State contends, however, that applying OCGA § 40-6-376 (d), Perkins’ reckless driving conviction is “null and void” and therefore does not trigger double jeopardy protection.

The State argues that because the Whitfield County Probate Court lacked jurisdiction to try Perkins on his felony vehicular homicide citation, it also lacked jurisdiction to try him on the underlying, lesser included misdemeanor reckless driving charge which arose out of the same events. Unfortunately, the plain language of OCGA § 40-6-376 (

d) does not support this argument. The statute provides: No court, other than a court having jurisdiction to try a person charged with a violation of Code

Section 40-6-393, shall have jurisdiction over any offense arising under the laws of this state or the ordinances of any political subdivision thereof, which offense arose out of the same conduct which led to said person’s being charged with a violation of Code

Section 40-6-393 and any judgment rendered by such court shall be null and void. (Emphasis supplied.) OCGA § 40-6-376 (d). Because the Whitfield County Probate Court has jurisdiction to try misdemeanor vehicular homicide cases charged under OCGA § 40-6-393 (b), the probate court is, by definition, included among the courts “having jurisdiction to try a person charged with a violation of Code

Section 40-6-393.” OCGA § 40-6-376 (d). Because the legislature made no distinction between misdemeanor and felony grades of vehicular homicide under OCGA § 40-6-393 when it drafted OCGA § 40-6-376 (d), we must assume that it intended to include both grades. By its plain language, OCGA § 40-6-376 (

d) did not divest the WTiitfield County Probate Court of jurisdiction to try Perkins on the reckless driving charge. Accordingly, Perkins’ reckless driving conviction was not “null and void,” and the trial court properly sustained Perkins’ plea in bar. 2. Perkins’ conditional motion to transfer this case to the Supreme Court is denied. Judgment affirmed. Andrews, P. J., and Barnes, J., concur. Pope, P. J., and Smith, P. J., concur specially. Ruffin and Eldridge, JJ., dissent. The Whitfield Comity Probate Court has jurisdiction over misdemeanor traffic offenses only. OCGA § 40-13-21 (a).