State v. Williams , 214 Ga. App. 701 ( 1994 )

Pope, Chief Judge.

The State appeals the trial court’s grant of defendant Michael Harry Williams’s plea in bar based on double jeopardy. See OCGA § 5-7-1 (3). The trial court held that defendant could not be prosecuted for improper passing and vehicular homicide because he already pled guilty to a charge of improper passing and paid a fine. We affirm.

Defendant was involved in a traffic collision occurring December 7, 1992. Trooper Stephens originally issued him a traffic citation charging him with improper passing, see OCGA § 40-6-44, and ordering him to appear in the probate court on January 13. The next day, Trooper Stephens took out warrants for improper passing and serious injury by vehicle, a felony. See OCGA § 40-6-394. When the injury victim died approximately one week after the accident, Trooper Stephens lifted the warrant for serious injury by vehicle and took out a warrant for vehicular homicide in the second degree. See OCGA § 40-6-393 (b). However, Trooper Stephens failed to lift the citation issued at the scene for improper passing. Defendant appeared in the probate court on January 13, 1993, as the traffic citation commanded, pled guilty to the improper passing charge and paid a $48 fine. Four months later the grand jury indicted Williams for improper passing and vehicular homicide in the second degree.

The trial court’s grant of defendant’s plea in bar was correct under Blockburger v. United States, 284 U. S. 299 (52 SC 180, 76 LE 306) (1932). Under Blockburger, successively charged offenses are separate for purposes of double jeopardy only if proof of each offense requires proof of some element or fact which proof of the other does not. See id. at 304. In order to prove defendant guilty of vehicular homicide in the second degree (as charged in the indictment), the State must show that defendant violated OCGA § 40-6-44 by improperly passing another vehicle, and that his violation of that Code section caused the death of another person. See OCGA § 40-6-393 (b). Thus, proof of improper passing requires proof of no element or fact which is not also necessary to prove vehicular homicide, and the former is necessarily a lesser included offense of the latter. “ ‘[A] conviction on a lesser-included offense bars subsequent trial on the greater offense.’ [Cit.]” State v. Burroughs, 246 Ga. 393 (271 SE2d 629) (1980).

As the dissent notes, Grady v. Corbin, 495 U. S. 508 (110 SC 2084, 109 LE2d 548) (1990) was overruled in United States v. Dixon, 509 U. S_(113 SC 2849, 125 LE2d 556) (1993). Corbin had expanded the double jeopardy bar to preclude prosecution and punishment for offenses based on the same conduct, even if they passed the Blockburger “same elements” test. Because the improper passing and vehicular homicide offenses here do not pass the Blockburger test, the overruling of Corbin does not affect the outcome of this case.

Judgment affirmed.

McMurray, P. J., Beasley, P. J., Johnson and Blackburn, JJ., concur. Birdsong, P. J., Andrews, Smith, JJ., and Senior Appellate Judge Harold R. Banke dissent.