DILLARD, C. J., DOYLE, P. J., and MERCIER, J.
the reversal of his convictions for kidnapping with bodily
injury, aggravated assault, possession of a firearm during
the commission of a crime, and making harassing phone calls,
Gregory Levin appeals the denial of his motion in autrefois
convict (double jeopardy) in connection with the kidnapping
charge, the denial of his motion to dismiss the indictment
(on constitutional speedy trial grounds) regarding all of the
charges, and the denial of his motion to recuse or disqualify
a judge. For the reasons that follow, we affirm.
complicated procedural history of this case is, for the most
part, set out in the opinion in Levin v. State, 334
Ga.App. 71 (778 S.E.2d 238) (2015). (Additional details will
be added as needed.)
In 1994, Gregory A. Levin was tried by a jury [in the
Superior Court of Douglas County] and convicted of kidnapping
with bodily injury, two counts of aggravated assault,
burglary, cruelty to children, aggravated battery, possession
of a firearm during the commission of a crime, and making
harassing phone calls. The trial court merged the aggravated
battery conviction into the kidnapping with bodily injury
conviction and sentenced Levin to a total of life plus 48
years in confinement. Levin appealed, and this Court reversed
his conviction for making harassing telephone calls based on
an improper verdict form, and his convictions for aggravated
assault and possession of a firearm based on erroneous jury
charges. Levin v. State, 222 Ga.App. 123, 126-127
(5), (6) (473 S.E.2d 582) (1996).
In 2014 [in a habeas corpus appeal], the Supreme Court of
Georgia reversed Levin's conviction for kidnapping with
bodily injury and vacated his life sentence based on the
State's failure to satisfy the asportation requirement as
set forth in Garza v. State, 284 Ga. 696 (670 S.E.2d
73) (2008). Levin v. Morales, 295 Ga. 781 (764
S.E.2d 145) (2014).
The Court also noted that the aggravated battery conviction
had been merged into the kidnapping conviction and ordered,
"[n]ow that the kidnapping conviction has been reversed,
on remand the trial court will need to revisit sentencing
[Levin] on the conviction for aggravated battery."
Id. at 784.
On remand, the trial court conducted a resentencing hearing
and on the day of the hearing, Levin filed a plea in bar on
double jeopardy grounds, seeking dismissal of the aggravated
battery count of the indictment. The trial court denied the
plea in bar, and sentenced Levin to 20 years in confinement
for the aggravated battery conviction.
Levin v. State, 334 Ga.App. 71, 71-72 (778 S.E.2d
238) (2015) (footnotes omitted).
Levin appealed the trial court's denial of his plea in
bar (double jeopardy) on the aggravated battery conviction
and the order imposing the new sentence on that charge.
Id. This Court affirmed the trial court's
decision. Id. The remittitur in that case was filed
in the Superior Court of Douglas County on February 22, 2016.
December 21, 2016, Levin was re-arraigned on the charges of
kidnapping with bodily injury, aggravated assault, possession
of a firearm during the commission of a crime, and making
harassing phone calls. The same day, he filed the motion in
autrefois convict, a plea in bar/motion to dismiss on
constitutional speedy trial grounds, and a motion for
disqualification and/or recusal of the judge. This appeal is
from the orders denying Levin's motions.
Levin contends that the trial court erred in denying his
motion in autrefois convict concerning the kidnapping with
bodily injury charge. He asserts that because the Supreme
Court of Georgia reversed his conviction on that charge based
on insufficiency of the evidence, double jeopardy bars
retrial. We disagree.
true that "once a reviewing court reverses a conviction
solely for insufficiency of the evidence to sustain the
jury's verdict of guilty, double jeopardy bars
retrial." Green v. State, 291 Ga. 287, 288 (1)
(728 S.E.2d 668) (2012). This principle, however, does not
squarely answer the issue presented here, which is: where a
reviewing court determines that the evidence presented at
trial has been rendered insufficient only by a post-trial
change in law, does double jeopardy preclude the
government from retrying the defendant?
out above, Levin's 1994 conviction for kidnapping with
bodily injury was affirmed. Levin v. State, 222
Ga.App. 123. Then, in Levin's 2012 habeas corpus appeal,
Levin v. Morales, 295 Ga. 781, the Supreme Court
reversed the kidnapping with bodily injury conviction and
vacated the sentence entered thereon, finding that there was
insufficient evidence of asportation under Garza v.
State, 284 Ga. 696, 702 (1) (670 S.E.2d 73) (2008)
(establishing new factors for assessing the asportation
element of Georgia's pre-2009 kidnapping statute).
Levi n v. Morales, 295 Ga. at 783-784. In denying
Levin's motion in autrefois, the trial court concluded
that the reversal of the kidnapping with bodily injury
conviction was based on a post-trial change in the law and
thus did not implicate double jeopardy principles.
parties point to, and we find, no binding authority precisely
on point. In fact, the question appears to be an
"open" one under Georgia law See Levin v.
State, 334 Ga.App. at 75 (2), citing Levin v.
Morales, 295 Ga. at 784-786 (Blackwell, J, concurring).
In his concurrence in Levin v. Morales, Justice
Blackwell wrote the following:
I write separately only to note some uncertainty in our law
about the extent to which Gregory A. Levin and others like
him may be retried, their convictions having been set aside
on habeas or appeal. When a conviction is set aside for a
mere trial error - inaccurate jury instructions, for
instance, or the admission of inadmissible evidence - the
State generally is permitted a retrial, and the
constitutional prohibition of double jeopardy does not
preclude it. See State v. Caffee, 291 Ga. 31, 34 (3)
(728 S.E.2d 171) (2012). When a conviction is set aside,
however, upon the failure of the State to have adduced
evidence legally sufficient to sustain the conviction, the
constitutional prohibition of double jeopardy ordinarily bars
a retrial. See Burks v. United States, 437 U.S. 1
(98 S.Ct. 2141, 57 L.Ed.2d 1) (1978). See also Green v.
State, 291 Ga. 287, 288 (1) (728 S.E.2d 668) (2012);
Prater v. State, 273 Ga. 477, 481 (4) (545 S.E.2d
864) (2001). Today, we hold that the State failed to present
evidence legally sufficient to sustain the conviction of
Levin for kidnapping, and on that basis, we direct that his
conviction must be set aside. If this were an ordinary
sufficiency case, our decision would preclude a retrial. But
it might not be so ordinary.
Levi n v. Morales, 295 Ga. at 784. Justice Blackwell
explained that when the State tried Levin for kidnapping with
bodily injury in 1994, before Garza was decided, the
prosecuting attorneys had no reason to know that anything
more than slight movement would be necessary to prove
asportation, and that:
When the State can know what proof the law requires, but
fails to offer such proof at trial, the State ought not have
another chance to convict the accused. But when the State
relies on a longstanding and settled understanding of the
law, and it offers evidence sufficient to carry its burden
consistent with that understanding - only to have that
understanding suddenly upended years later by an appellate
court undertaking a course correction - it is not so clear
that the State should be denied a second chance.
Levin v. Morales, 295 Ga. at 785. In his
concurrence, Justice Blackwell cited cases from other
jurisdictions that hold:
where a reviewing court determines that the evidence
presented at trial has been rendered insufficient only by a
post-trial change in law, double jeopardy concerns do not
preclude the government from retrying the defendant.
United States v. Ford, 703 F.3d 708, 711 (II) (A)
(4th Cir. 2013) (citations omitted). See also United
States v. Wacker, 72 F.3d 1453, 1465 (II) (A) (10th Cir.
1996); United States v. Weems, 49 F.3d 528, 531 (II)
(9th Cir. 1995); State v. ...