                               FOURTH DIVISION
                                DILLARD, P. J.,
                           RICKMAN and BROWN, JJ.

                   NOTICE: Motions for reconsideration must be
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                   days of the date of decision to be deemed timely filed.
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                   THE TIMES SET BY OUR COURT RULES.


                                                                     June 26, 2020



In the Court of Appeals of Georgia
 A20A0050. THE STATE v. ADAMS.

      RICKMAN, Judge.

      The question presented in this case is whether OCGA § 16-1-8 (c), Georgia’s

statutory law governing successive prosecutions for crimes that violate both state and

federal law, prohibits the State of Georgia from prosecuting Samuel Carlton Adams

for trafficking methamphetamine after Adams, who was also indicted in federal court

on crimes stemming from the same set of facts, reached a plea agreement in federal

court pursuant to which he pled guilty to a weapons charge in exchange for the

dismissal of the drug charges pending against him. We conclude that it does not.

Accordingly, we reverse the trial court’s order granting his plea in bar on the charge

of trafficking methamphetamine. In so doing, we take the time to clarify our case law

and to disapprove of the holding in State v. Smith, 185 Ga. App. 694 (365 SE2d 846)
(1988), upon which the trial court relied, and similar cases that unnecessarily conflate

the constitutional protection of double jeopardy with the statutory protections against

successive prosecution offered by OCGA § 16-1-8.1

      The evidence in this case is uncontroverted and witness credibility is not an

issue; accordingly, we review de novo the trial court’s application of the law to the

facts when it granted the plea in bar pursuant to OCGA § 16-1-8 (c). See State v.

Pruiett, 324 Ga. App. 789, 790 (751 SE2d 579) (2013).

      The procedural history is as follows. In August 2017, Adams was arrested and

subsequently indicted in the Athens-Clarke County Superior Court on, among other

things, one count of trafficking of methamphetamine (more than 400 grams)2 (the

“State Case”). Adams pled not guilty and the State Case was placed on the December

2018 jury calendar.




      1
         We have circulated this decision among all nondisqualified judges of the
Court to consider whether this case should be passed upon by all members of the
Court. Fewer than the required number of judges, however, voted in favor of a
hearing en banc on the question of overruling State v. Smith, 185 Ga. App. 694 (365
SE2d 846) (1988), as well as Smith’s progeny and the cases that have relied on Smith
as set forth in Footnote 11 of this opinion.
      2
          See OCGA § 16-13-31 (e) (3).

                                           2
      Meanwhile, in March 2018, based on the same conduct underlying the state

charges, Adams was indicted in the United States District Court for the Middle

District of Georgia on, among other things, one count of possession with intent to

distribute methamphetamine3 and possession of a firearm by a convicted felon4 (the

“Federal Case”).

      In November 2018, Adams pled guilty in the Federal Case to one count of

possession of a firearm by a convicted felon. The plea was given “in full satisfaction

of all possible federal criminal charges, known to the United States Attorney at the

time of [Adams’s] guilty plea,” and the remaining charges, including the charge of

possession with intent to distribute methamphetamine, were dismissed.

      Adams then filed a plea in bar in the State Case, asserting that OCGA § 16-1-8

barred the State from prosecuting him for trafficking methamphetamine because the

drug charge had been dismissed by federal prosecutors in exchange for his guilty plea

in the Federal Case. The trial court granted the motion after concluding that the

federal prosecutor’s dismissal of the drug charge in accordance with a plea agreement

“acts as an acquittal and bars further prosecution under OCGA § 16-1-8 (c).”

      3
          See 21 USC § 841 (a) (1), (b) (1) (B) (viii).
      4
          See 18 USC §§ 922 (g) (1), 924 (a) (2).

                                             3
      The State appeals the trial court’s grant of the plea in bar,5 contending that the

trial court erred by holding that its prosecution of Adams for trafficking

methamphetamine is precluded by the statutory protections contained within OCGA

§ 16-1-8 (c). We agree.

      Our analysis begins by recognizing that there is more than one potential bar to

successive prosecutions in the State of Georgia. The first is constitutional double

jeopardy. The Fifth Amendment to the United States Constitution provides that no

person shall “be subject for the same offense to be twice put in jeopardy of life or

limb.” Likewise, the Georgia Constitution provides that “no person shall be put in

jeopardy of life or liberty more than once for the same offense.” Ga. Const.1983, Art.

I, Sec. I, Par. XVIII.

      States are sovereigns separate from the federal government, however, “and a

state’s power to undertake criminal prosecutions is derived from its own inherent

sovereignty.” Calloway v. State, 303 Ga. 48, 52 (2) (810 SE2d 105) (2018). “Under

the dual sovereignty doctrine, where a single act violates the law of two sovereigns


      5
        The State’s appeal is authorized by OCGA § 5-7-1 (a) (1), (3) (permitting the
State to appeal from an order “setting aside or dismissing any indictment” or
“sustaining a plea or motion in bar, when the defendant has not been put in
jeopardy”).

                                          4
(e.g., the United States and a state), an individual may be prosecuted and punished by

each sovereign without violating double jeopardy.” Id. No one disputes in this case

that the State was not constitutionally barred under the dual sovereignty doctrine from

prosecuting Adams for trafficking methamphetamine merely because the federal

government elected not to do so in accordance with the terms of a plea agreement.

See id.

      Nevertheless, Georgia statutory law provides protection against successive

prosecutions that extends beyond that of the protection offered by constitutional

double jeopardy. See OCGA §§ 16-1-6, 16-1-7,6 16-1-8; see generally Prater v. State,

273 Ga. 477, 480 (4) (545 SE2d 864) (2001). Those that involve successive federal

and state prosecutions are governed by OCGA § 16-1-8 (c), which provides:

      A prosecution is barred if the accused was formerly prosecuted in a
      district court of the United States for a crime which is within the
      concurrent jurisdiction of this state if such former prosecution resulted
      in either a conviction or an acquittal and the subsequent prosecution is
      for the same conduct, unless each prosecution requires proof of a fact



      6
        Although OCGA §§ 16-1-6, 16-1-7, and 16-1-8 should be read together when
considering Georgia’s statutory protection against successive prosecutions, see
Prater, 273 Ga. at 480 (4), neither OCGA § 16-1-6 or 16-1-7 are implicated by this
case nor are they discussed in this opinion.

                                          5
      not required in the other prosecution or unless the crime was not
      consummated when the former trial began.


See also Thorpe v. State, 251 Ga. App. 334, 334 (553 SE2d 171) (2001). Thus, in

order for subsection (c) to act as a bar to a state prosecution, three elements must be

met: (1) the crime must be within the State’s concurrent jurisdiction; (2) the federal

prosecution must have resulted in a conviction or acquittal; and (3) the state and

federal prosecutions must be for the same conduct and must not require proof of a fact

not required by the other (or the state crime must not have been complete at the time

of the federal trial). See Calloway, 303 Ga. at 52 (2).

      The State concedes that the first and third statutory elements have been met.

The only issue here is whether, as the trial court held, the federal government’s

dismissal of the drug charge resulting from the plea agreement in the Federal Case

amounted to an “acquittal” of that charge within the context of subsection (c).

      As always, when construing the meaning of a statute, “we must presume that

the General Assembly meant what it said and said what it meant.” (Citation and

punctuation omitted.) Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337)

(2013). “To that end, we must afford the statutory text its plain and ordinary meaning,

we must view the statutory text in the context in which it appears, and we must read

                                           6
the statutory text in its most natural and reasonable way, as an ordinary speaker of the

English language would.” (Citations and punctuation omitted.) Id. at 172-73 (1) (a).

“[I]f the statutory text is clear and unambiguous, we attribute to the statute its plain

meaning, and our search for statutory meaning is at an end.” (Citation and

punctuation omitted.) Id. at 173 (1) (a).

       The plain language of subsection (c) bars the State from prosecuting Adams if

the drug crime in the Federal Case “resulted in either a conviction or an acquittal.”

It did not.

       Although “acquittal” is not defined in the statute itself, its dictionary definition

is “[t]he legal certification, [usually] by jury verdict, that an accused person is not

guilty of the charged offense; an official statement in a court of law that a criminal

defendant is not guilty.” Black’s Law Dictionary (11th ed. 2019). A prosecutor’s

agreement to dismiss a criminal charge in exchange for a guilty plea on different

charge is, in essence, a contract between the defendant and the government. See

generally Syms v. State, 331 Ga. App. 225, 227 (770 SE2d 305) (2015). But that

dismissal alone in no way amounts to a legal determination of the defendant’s guilt

or innocence on the dismissed charge and, thus, does not amount to an “acquittal” for

the purposes of OCGA § 16-1-8. Cf. Arnold v. State, 352 Ga. App. 777, 779-880 (835

                                            7
S.E.2d 759) (2019) (holding that the reindictment by the State of a criminal charge

that had been nolle prossed in a previous prosecution pursuant to a pretrial plea

agreement did not amount to an “acquittal” so as to be barred by OCGA § 16-1-8 (b),

but the subsequent prosecution was nonetheless barred by the plea agreement); see

also Sample v. State, 232 Ga. App. 690, 692 (2) (503 SE2d 576) (1998) (recognizing

that the State’s consent to an order of nolle prosequi in the context of a plea

agreement is not a concession that the crime was not committed).

      In holding otherwise, the trial court relied on State v. Smith, 185 Ga. App. 694

(365 SE2d 846) (1988). Smith did not involve successive prosecutions by federal and

state governments under subsection (c), which is the only subsection governing

prosecutions by different sovereigns. See Thorpe, 251 Ga. App. at 334. Rather, Smith

invoked the “rule of criminal res judicata” contained in subsection (b) (1), involving

successive prosecutions by the same sovereign, i.e. the State. See Smith, Ga. App. at

695-696; Drinkard v. Walker, 281 Ga. 211, 214 (636 SE2d 530) (2006). Regardless,

like subsection (c), subsection (b) (1) bars a second prosecution when, among other

things, the first prosecution “[r]esulted in either a conviction or an acquittal.”7

      7
          In its entirety, OCGA § 16-1-8 (b) provides:

      A prosecution is barred if the accused was formerly prosecuted for a

                                           8
Because the relevant language of subsection (b) (1) mirrors that of subsection (c), and

because the trial court’s reliance on Smith was reasonable, we will take the time to

address its faulty reasoning.

      Smith involved a defendant who was charged in state court under a four count

accusation related to her driving under the influence of alcohol. See Smith, 185 Ga.

App. at 694. She entered into an agreement with an assistant solicitor pursuant to

which she agreed to plead guilty to two of the charges in exchange for the State’s

dismissal of the other two. Id. at 694. The trial court accepted the plea and the

remaining charges were dismissed. Id. Prior to sentencing, the solicitor, claiming that

his assistant failed to accurately follow instructions, attempted to prosecute the

      different crime or for the same crime based upon different facts, if such
      former prosecution:

      (1) Resulted in either a conviction or an acquittal and the subsequent
      prosecution is for a crime of which the accused could have been
      convicted on the former prosecution, is for a crime with which the
      accused should have been charged on the former prosecution (unless the
      court ordered a separate trial of such charge), or is for a crime which
      involves the same conduct, unless each prosecution requires proof of a
      fact not required on the other prosecution or unless the crime was not
      consummated when the former trial began; or

      (2) Was terminated improperly and the subsequent prosecution is for a
      crime of which the accused could have been convicted if the former
      prosecution had not been terminated improperly.

                                          9
defendant on one of the previously dismissed charges. Id. at 694-95. In a rather

inartfully worded opinion, the Smith Court held that subsection (b) (1) precluded the

solicitor’s successive prosecution, a holding that required an implicit conclusion that

a dismissal of that count amounted to an “acquittal” under OCGA § 16-1-8.8

      Applying the same rules of statutory construction to subsection (b) (1) that we

applied to the same language of subsection (c) above, we overrule Smith to the extent

that it can be read to equate the dismissal of a criminal charge pursuant to a guilty

plea with an “acquittal” for the purposes of OCGA § 16-1-8 (b) (1). See Lathrop v.

Deal, 301 Ga. 408, 442 (III) (C) (801 SE2d 867) (2017) (“[W]hen the same words are

used in different parts of a single constitutional or statutory enactment, the courts

generally assume – absent some clear indication otherwise – that the words are used

in the same sense.”); Allen v. Donaldson, 12 Ga. 332, 335 (1852) (“[T]he same term

or phraseology occurring in the same [s]tatute, is to receive the same interpretation,

unless there be something in the [statute] which renders this construction manifestly

improper.”).


      8
        We note that Smith could have been decided using contract principles. See
Syms v. State, 331 Ga. App. 225, 227 (770 SE2d 305) (2015) (“A plea agreement is,
in essence, a contract between a defendant and the State.”) (citation and punctuation
omitted).

                                          10
      But Smith is problematic for another reason. By framing its holding within the

context of OCGA § 16-1-8 (b) (1) and yet failing to engage in any meaningful

statutory analysis, Smith relied on and perpetuated misguided precedent that conflates

the concept of constitutional double jeopardy with the statutory protection afforded

by OCGA § 16-1-8.9 Specifically, Smith predicated the application of OCGA § 16-1-8

(b) on a defendant having first been “placed in jeopardy,”10 relying on case law that

injected jeopardy into the definition of “prosecuted” for the purposes of the statute.

Smith, 185 Ga. App. at 696; see also Cochran v. State, 176 Ga. App. 58, 60 (335

SE2d 165) (1985) (“For purposes of . . . OCGA § 16-1-8, a defendant has been




      9
       Some of the confusion is likely spawned from our use of the term “procedural
double jeopardy” when referring to OCGA § 16-1-8 (b) (in conjunction with OCGA
§ 16-1-7 (b)). See generally Pruiett, 324 Ga. App. at 794 (1) (b).
      10
         Smith further held that, “a plea of guilty . . . with its entry on the record and
acceptance by the trial judge constitutes jeopardy.” Id. at 696. We note that if and
when jeopardy attaches to a guilty plea is itself an issue of some debate. Compare
generally U.S. v. McIntosh, 580 F3d 1222, 1227 (III) (11th Cir. 2009) (“Jeopardy
normally attaches when the court unconditionally accepts a guilty plea.”) (citation and
punctuation omitted), with U.S. v. Santiago Soto, 825 F2d 616, 620 (1st. Cir. 1987)
(“We hold that jeopardy did not attach when the district court accepted the guilty plea
to the lesser included offense and then rejected the plea without having imposed
sentence and entered judgment.”). For the purpose of this appeal, however, we need
to go no further than recognizing that the attachment of jeopardy plays no part in the
protections offered by OCGA § 16-1-8.

                                           11
prosecuted on an indictment or accusation only after he has been initially placed in

jeopardy.”) (citation and punctuation omitted).

      But nothing in the plain language of OCGA § 16-1-8 predicates the application

of its provisions on the attachment of jeopardy. Rather, pertinent to our holding, the

bar is established if an accused was “formerly prosecuted” and, as previously

discussed, the prosecution resulted in “either a conviction or an acquittal.” See OCGA

§ 16-1-8 (b) (1), (c). “Prosecution” is defined as “all legal proceedings by which a

person’s liability for a crime is determined,” and a “conviction” includes “a final

judgment of conviction entered . . . upon a plea of guilty.” OCGA § 16-1-3 (4), (14).

Simply put, jeopardy plays no part in the determination of whether a successive

prosecution is statutorily barred by OCGA § 16-1-8.

      For these reasons, we overrule Smith to the extent that it can be read to stand

for the proposition that the dismissal of a criminal charge amounts to an “acquittal”

for the purposes of OCGA § 16-1-8, and further overrule Smith, its progeny, and the




                                         12
cases in which it has been cited for the proposition that jeopardy must attach before

the statutory bar set forth in OCGA § 16-1-8 is triggered.11

      Judgment reversed. Dillard, P. J., and Brown, J., concur.




      11
         Those cases include, but are not necessarily limited to, Goodwin v. State, 341
Ga. App. 530 (802 SE2d 3) (2017); State v. Jones, 290 Ga. App. 879 (661 SE2d 573)
(2008); State v. Daniels, 206 Ga. App. 443 (425 SE2d 366) (1992); Geckles v. State,
177 Ga. App. 70 (338 SE2d 473 (1985); Cochran v. State, 176 Ga. App. 58 (335
SE2d 165) (1985); Caldwell v. State, 171 Ga. App. 680 (320 SE2d 888) (1984).

                                          13
