☢ test - Í

Brown v. State, 251 Ga.App. 569, 554 S.E.2d 760 (September 14, 2001). A defendant has not been subjected to a former prosecution under OCGA § 16-1-7(b) where the defendant pays a fine to the court clerk but does not enter a plea in connection with the payment and the payment does not result in the entry of a dispositional order by any judicial officer. The forfeiture of a cash bond only results in a final disposition of a case where the court enters a judgment ordering the case disposed of and settled. 4. CIVIL COMMITMENT Seling v. Young, 531 U.S. 250, 121 S. Ct. 727, 148 L.Ed.2d 734 (January 17, 2001). Reversing Ninth Circuit; Young’s habeas petition should have been denied, as his confinement under Washington State’s statute relating to “sexually violent predators” was civil, not criminal, and thus not violative of the Double Jeopardy or Ex Post Facto Clauses. Recognizing that Washington’s Supreme Court “had already held that the [confinement statute] was civil, Young filed federal habeas contending that the statute was punitive as applied to him. Ninth Circuit agreed that he could bring such a claim, but U.S. Supreme Court reverses, saying that such an approach is improper, based on Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (disapproving “of evaluating the civil nature of an Act by reference to the effect that Act has on a single individual”) and Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (holding that Kansas statute patterned on the Washington statute here was civil, not criminal). “We hold that respondent cannot obtain release through an ‘as-applied’ challenge to the Washington Act on double jeopardy and ex post facto grounds. We agree with petitioner [commitment center superintendent] that an ‘as-applied’ analysis would prove unworkable. Such an analysis would never conclusively resolve whether a particular scheme is punitive and would thereby prevent a final determination of the scheme's validity under the Double Jeopardy and Ex Post Facto Clauses. … The civil nature of a confinement scheme cannot be altered based merely on vagaries in the implementation of the authorizing statute.” As explained in Hendricks , “the question whether an Act is civil or punitive in nature is initially one of statutory construction. 521 U.S., at 361, 117 S.Ct. 2072 (citing Allen v. Illinois, 478 U.S. 364, 368, 106 S.Ct. 2988, 92 L.Ed.2d 296 (1986)). A court must ascertain whether the legislature intended the statute to establish civil proceedings. A court will reject the legislature's manifest intent only where a party challenging the Act provides the clearest proof that the statutory scheme is so punitive in either purpose or effect as to negate the State's intention. 521 U.S., at 361, 117 S.Ct. 2072 (citing United States v. Ward, 448 U.S. 242, 248-249, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980)). We concluded that the confined individual in that case had failed to satisfy his burden with respect to the Kansas Act. We noted several factors: The Act did not implicate retribution or deterrence; prior criminal convictions were used as evidence in the commitment proceedings, but were not a prerequisite to confinement; the Act required no finding of scienter to commit a person; the Act was not intended to function as a deterrent; and although the procedural safeguards were similar to those in the criminal context, they did not alter the character of the scheme. 521 U.S., at 361-365, 117 S.Ct. 2072.” Proper to consider “the conditions of confinement provided by the Act,” but where the statute has already been determined to be civil, not proper to consider actual conditions of confinement “as applied”; remedy for actual conditions at variance with those provided by the Act is through civil action. Undecided: whether it would be appropriate to consider actual conditions of confinement in making the initial civil/criminal determination. Scalia, Souter and Thomas concur, would not look to actual conditions of confinement in first instance, either. Stevens dissents. 5. COLLATERAL ESTOPPEL New case! Giddens v. State, S16A0256, ___ Ga. ___, ___ S.E.2d ___, 2016 WL 2946409 (May 23, 2016). In felony murder prosecution, trial court properly denied plea in bar based on double jeopardy. In first trial, defendant was found not guilty of aggravated assault, but guilty on five counts based on that aggravated assault (felony murder, street gang activity, and weapons offenses). Trial court then granted new trial on the convictions based on errors in the jury instructions. Held, collateral estoppel didn’t bar retrial in these circumstances. Evidence was sufficient to convict on these offenses; verdict convicting on these but acquitting on aggravated assault was inconsistent, but not illegal. “[A] defendant’s retrial for convictions that have been reversed or vacated due to trial error is not barred by an inconsistent acquittal.” Contrary to defendant’s argument, nothing in the record (including the error in jury instructions) shows that the jury definitively found that he didn’t commit the aggravated assault in question; rather, “the guilty and not guilty verdicts returned at Appellant’s original trial show that the jury decided that he did and he did not commit aggravated assault by shooting Murray.” Anticipates U.S. Supreme Court’s ruling in United States v. Bravo–Fernandez, case no. 15-537. Robinson v. State, 334 Ga.App. 646, 780 S.E.2d 86 (November 18, 2015). Armed robbery conviction reversed; trial court erred in denying defendant’s objections to retrial based on issue preclusion/collateral estoppel. At his first trial, jury acquitted Robinson on charges of murder and aggravated assault, but couldn’t reach a verdict on armed robbery and