Floyd v. State

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In the
Supreme Court of Georgia
No. S26A0478
Darnell Rene Floyd
v.
The State

On Appeal from the Superior Court of Newton County
No. SUCR2024000866

Decided: June 16, 2026

LAND, Justice.
Darnell Floyd appeals the trial court’s denial of his plea in
bar, which challenged his reindictment for charges of felony mur-
der predicated on felon in possession of a firearm, felon in posses-
sion of a firearm (hereinafter felon in possession), and possession
of a firearm during the commission of a felony (the “reindict-
ment”). 1 Floyd argues that the reindictment violates procedural
double jeopardy because he was not originally indicted for felony
murder predicated on felon in possession and his original indict-
ment did not put him on notice that he might later be charged and
tried for that crime. Floyd also argues that the State is collater-
ally estopped from reindicting and trying him for the reindicted

1 In 2024, this Court reversed Floyd’s prior convictions for these
charges. See Floyd v. State, 318 Ga. 312, 324 (2024). On September 6, 2024, a
Newton County Grand Jury then reindicted Floyd, , and he filed a plea in bar
on November 6, 2024, and amended that plea in bar on March 5, 2025. The
trial court denied the plea in bar as amended on May 2, 2025. On May 5, 2025,
Floyd filed a notice of appeal, and this case was docketed to the term of this
Court beginning in December 2025.
charges because the jury necessarily decided that he acted in self-
defense when it acquitted him of other charges in his first trial, a
finding that would be an absolute defense to the charges brought
in his second indictment. For the reasons that follow, we affirm.

1. Background
(a) Floyd was previously indicted and tried on charges in-
cluding malice murder, felony murder predicated on both at-
tempted armed robbery and aggravated assault, attempted
armed robbery, aggravated assault, possession of a firearm dur-
ing the commission of a felony, and felon in possession (the “first
indictment”). Floyd v. State, 318 Ga. 312, 312 n.1 (2024) (“Floyd
I”). Floyd’s sole defense at trial was self-defense, and he argued
that he shot the victim, Telmo Ortiz, because he saw Ortiz “pull-
ing out his gun and lunging at [him]” as Floyd left his vehicle. 2
Id. at 314. Floyd was a convicted felon and had firearms in his
vehicle and on his person before the fatal encounter with Ortiz.
Id. at 313–14.
Although the first indictment did not charge Floyd with fel-
ony murder predicated on felon in possession, the trial court
charged the jury on this offense after the State requested this
charge on the first day of trial, and he was therefore prosecuted
for this crime as well. Id. at 318–19. The jury found Floyd not
guilty of malice murder, the felony murder charges as indicted,
attempted armed robbery, aggravated assault, and other charges
unrelated to this appeal. Id. at 312 n.1. He was convicted, how-
ever, of felony murder predicated on felon in possession, felon in

2 The facts underlying Floyd’s first trial are set forth in greater detail
in Floyd I, 318 Ga. at 312-18.

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possession, possession of a firearm during the commission of a fel-
ony, and other charges unrelated to this appeal. Id.
(b) Floyd appealed the trial court’s denial of his motion for
new trial, and we reversed his convictions for felony murder based
on felon in possession, felon in possession, and possession of a fire-
arm during the commission of a felony based on his trial counsel’s
ineffective assistance in failing to pursue a self-defense theory as
to those offenses at trial. We explained that OCGA § 16-11-138
provides that “[d]efense of self or others, as contem-
plated by and provided for under Article 2 of Chapter
3 of this title, shall be an absolute defense” to vari-
ous statutes criminalizing the carrying and posses-
sion of firearms in specified ways, including prohib-
iting the possession of firearms by a convicted felon.

Floyd I, 318 Ga. at 318. Floyd’s trial counsel failed to request a
jury instruction on OCGA § 16-11-138 and acknowledged at the
motion for new trial hearing that he was unfamiliar with the stat-
ute at the time of the trial. Id. at 319. He also affirmatively argued
before the jury that “self-defense did not apply to the felon-in-pos-
session count,” although he did argue that “self-defense applied
to felony murder predicated on attempted armed robbery and ag-
gravated assault.” Id.
In Floyd I, during the morning of the second full day of its
deliberations, the jury sent out the following note:
Can [Appellant], as a convicted fellon [sic] with a
weapon, be justified to use a weapon (gun) to defend
himself if he fears for his life?

In the eyes of Georgia law what has presidence [sic]:

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- self defense (at all costs)

- fellon [sic] in possession of a weapon defending
himself

Floyd I, 318 Ga. at 319. The trial court and trial counsel re-
sponded to this note as follows:
During a brief discussion with the parties, the trial
court indicated its understanding of the note as ask-
ing “can a felon grab a gun and shoot somebody in
self-defense and does the self-defense still apply in
that situation,” and that the answer to that question
was “yes.” With the parties’ agreement, the trial
court wrote under the first question, “Yes if he rea-
sonably fears for his life.” The trial court then told
the parties that in response to the second question
posed, he wrote, “That is an issue for you to decide.”
Trial counsel responded “correct” and stated he had
no objection to the answer as given.

Id. at 319. In concluding that Floyd’s trial counsel was deficient
under Strickland v. Washington, 466 US 668 (1984), we reasoned
that “no reasonable attorney would have agreed with the trial
court’s response to the jury’s second question, which at best was
a non-answer, and at worst, authorized the jury to convict on fel-
ony murder based on felon-in-possession even if it believed
[Floyd]’s claim of self-defense.” Id. at 322.
In concluding that Floyd was prejudiced under Strickland,
we observed that Floyd “testified that he acted in self-defense,
self-defense was the only defense proffered, and the jury acquitted
him of the other offenses arising out of the shooting of Ortiz for
which self-defense was asserted — malice murder, felony murder

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based on aggravated assault, and aggravated assault.” Floyd I,
318 Ga. at 323. We also observed that the jury note indicated that
the jury was considering Floyd’s theory of self-defense as applied
to his felon in possession and felony murder charges and may
have been confused by the trial court’s handling of its questions
concerning this issue. Id. Accordingly, we reversed Floyd’s convic-
tions for felony murder and felon in possession. Id. at 324. And
because we reversed the felony murder conviction, “the only con-
viction supporting the conviction for … possession of a firearm
during the commission of a felony,” we reversed that conviction
as well. Id.
We noted, however, that because the evidence was legally
sufficient to support these convictions, Floyd could be retried on
“felony murder predicated on felon-in-possession as well as for
possession of a firearm during the commission of a felony.” Floyd
I, 318 Ga. at 324. We expressed “no opinion” as to whether Floyd
could be reindicted for those charges. Id. at 324 n.16.

2. Analysis
Floyd argues that the trial court erred in denying his plea
in bar because procedural double jeopardy bars his reindictment
and collateral estoppel bars retrial on all three counts. “On ap-
peal from the grant or denial of a double jeopardy plea in bar, we
review the trial court's oral and written rulings as a whole to de-
termine whether the trial court's findings support its conclusion.”
Maxwell v. State, 311 Ga. 673, 676 (2021). “In reviewing a trial
court’s ruling on a motion for plea in bar, where the evidence is
uncontroverted and no question is presented regarding the credi-
bility of witnesses, we review de novo the trial court’s application
of the law to the undisputed facts.” Medina v. State, 309 Ga. 432,
436 (2020).

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(a) Floyd first argues that the trial court erred in denying
his plea in bar because the reindictment for felony murder predi-
cated on felon in possession is barred by procedural double jeop-
ardy. We disagree.
“The United States and Georgia Constitutions both pro-
hibit the government from placing a defendant ‘in jeopardy’ more
than once for the same offense.” Medina v. State, 309 Ga. 432, 434
(2020). “The doctrine of double jeopardy has two components: the
‘procedural’ bar on double jeopardy, which places limitations on
multiple prosecutions for crimes arising from the same conduct,
and the ‘substantive’ bar, which protects against multiple convic-
tions or punishments for such crimes.” Williams v. State, 307 Ga.
778, 779 (2020) (citations and quotations omitted).
Floyd raises arguments under both the Georgia and United
States Constitutions. Because Georgia law “extend[s] the Double
Jeopardy proscription beyond that provided for in the United
States and Georgia Constitutions,” however, all “questions of
Double Jeopardy in Georgia must be determined under OCGA §§
16–1–6, 16–1–8 and 16–1–7.” Prater v. State, 273 Ga. 477, 480
(2001). Under Georgia law, “[i]f the several crimes arising from
the same conduct are known to the proper prosecuting officer at
the time of commencing the prosecution and are within the juris-
diction of a single court, they must be prosecuted in a single pros-
ecution.” OCGA § 16-1-7(b). And, under OCGA § 16-1-8(b)(1), a
subsequent prosecution is barred if the first prosecution
[r]esulted in either a conviction or an acquittal and
the subsequent prosecution … is for a crime with
which the accused should have been charged on the
former prosecution … or is for a crime which in-
volves the same conduct, unless each prosecution re-

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quires proof of a fact not required on the other pros-
ecution.

“In other words, a second prosecution is barred under OCGA § 16-
1-8(b)(1) if it is for crimes which should have been brought in the
first prosecution under OCGA § 16-1-7(b).” Maxwell v. State, 311
Ga. 673, 677 (2021) (cleaned up). A prosecution is not barred, how-
ever, if “[s]ubsequent proceedings resulted in the invalidation,
setting aside, reversal, or vacating of the conviction, unless the
accused was thereby adjudged not guilty or unless there was a
finding that the evidence did not authorize the verdict.” OCGA §
16-1-8(d)(2).
These statutes do not bar the reindictment and prosecution
of Floyd, and his claim that procedural double jeopardy bars his
retrial therefore fails. First, OCGA §§ 16-1-7(b) and 16-1-8(b)(1)
do not aid Floyd’s position because he was in fact prosecuted and
tried in his first trial for the offenses that are the subject of the
reindictment. The felony murder charge predicated on felon-in-
possession may not have been part of his original indictment, but
it was part of that prosecution. As noted above, the jury was given
a jury instruction on this offense after the State requested it on
the first day of trial, and Floyd was in fact prosecuted and con-
victed for it. Thus, OCGA §§ 16-1-7(b) and 16-1-8(b)(1) have no
application and do not prohibit Floyd’s prosecution pursuant to
the reindictment.
Second, OCGA § 16-1-8(d)(2) is dispositive of the issue be-
fore us and controls that issue adversely to Floyd. Under that code
section, a prosecution is not barred where a prior conviction is re-
versed, “unless the accused was thereby adjudged not guilty or
unless there was a finding that the evidence did not authorize the
verdict.” Here, Floyd was not “adjudged not guilty” of the charges

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that are the subject of the reindictment, and there was no “find-
ing that the evidence did not authorize the verdict.” In fact, we
determined the opposite in Floyd I. See Floyd I, 318 Ga. at 324
(“Because, as discussed in Division 1 above, the evidence was le-
gally sufficient to support the jury’s guilty verdicts, the State may
retry Appellant for felony murder predicated on felon-in-posses-
sion as well as for possession of a firearm during the commission
of a felony.”). Thus, Floyd may be reindicted and re-prosecuted for
those offenses, and the trial court properly denied his plea in bar.
See Prater, 273 Ga. at 480-81 (“Generally speaking, re-prosecu-
tion is not barred under the Georgia Code if an initial conviction
is reversed on appeal, unless there is a finding on appeal that the
evidence did not authorize the verdict.”). 3
(b) Next, Floyd argues that the trial court erred in denying
his plea in bar because the State is collaterally estopped from
prosecuting him for felony murder predicated on felon in posses-
sion, felon in possession, and possession of a firearm during the
commission of a felony. Specifically, relying on this Court’s deci-
sion in Roesser v. State, 294 Ga. 295 (2013), Floyd argues that his
acquittal for malice murder and related charges in his first trial
indicated that the jury necessarily decided that he was acting in
self-defense. For the reasons that follow, we disagree.
“No person, the Double Jeopardy Clause states, shall be
‘subject for the same offense to be twice put in jeopardy of life or

3 Although Floyd argues that he may not be reindicted for possession
of a firearm during the commission of a felony, he does not provide any argu-
ment in support of this position. In Floyd’s first indictment, he was indicted
for possession of a firearm during the commission of a felony, the underlying
felony being the “[m]urder” of Ortiz. We see no reason under procedural double
jeopardy principles why he may not be reindicted for possession of a firearm
during the commission of felony, with the underlying felony being the felony
murder as charged.

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limb.’” Bravo-Fernandez v. United States, 580 US 5, 9 (2016).
Thus, “the Double Jeopardy Clause precludes the Government
from relitigating any issue that was necessarily decided by a
jury’s acquittal in a prior trial.” Yeager v. United States, 557 US
110, 119 (2009). To determine what a jury has “necessarily de-
cided … courts should ‘examine the record of a prior proceeding,
taking into account the pleadings, evidence, charge, and other rel-
evant matter, and conclude whether a rational jury could have
grounded its verdict upon an issue other than that which the de-
fendant seeks to foreclose from consideration.’” Id. at 119–20 (ci-
tation omitted).
In Roesser v. State, 294 Ga. 295 (2013), this Court held that
the defendant could not be retried for voluntary manslaughter af-
ter he was acquitted of malice murder, felony murder, and aggra-
vated assault but the jury could not reach a verdict on voluntary
manslaughter. This Court observed that “[f]rom the attorneys’
opening statements through the jury’s verdict, the issue pre-
sented to the jury was whether [the defendant] had acted in self-
defense.” Id. at 298. This Court also noted that the jury submitted
a note during its deliberations indicating that it was focused on
self-defense. Id. Based on these facts, this Court determined that
the defendant could not be retried on voluntary manslaughter be-
cause the jury “necessarily decided” that the defendant acted in
self-defense in reaching its verdict of acquittal on the other
charges. 4 Id. at 300.

4 As discussed below, although we conclude that Roesser is distinguish-
able from this case, some of us question the holding in Roesser. In that case,
there was no affirmative finding by the jury that the defendant acted in self-
defense, and without such a finding it seems speculative for us to conclude that
that is what the jury “necessarily decided.” The State has not asked us to over-
rule or reconsider Roesser, and given the fact that it is distinguishable, we have
no reason to do so in this case.

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Roesser is distinguishable from the instant case, however,
because the outcome in Floyd I did not involve a hung jury on any
count. Rather the jury returned a verdict on all counts, including
a guilty verdict on the relevant charges that are now set forth in
the reindictment. As the United States Supreme Court has ex-
plained, and as we have held in Division 2(a), “when a conviction
is overturned on appeal, the general rule is that the Double Jeop-
ardy Clause does not bar reprosecution.” Bravo-Fernandez, 580
US at 18 (cleaned up). Instead,
the ordinary consequence of vacatur, if the Govern-
ment so elects, is a new trial shorn of the error that
infected the first trial. This “continuing jeopardy”
rule neither gives effect to the vacated judgment nor
offends double jeopardy principles. Rather, it re-
flects the reality that the “criminal proceedings
against an accused have not run their full course.”
And by permitting a new trial post vacatur, the con-
tinuing-jeopardy rule serves both society’s and crim-
inal defendants’ interests in the fair administration
of justice.

Id. (cleaned up). See also Burks v. United States, 437 US 1, 9
(1978) (“It is elementary in our law that a person can be tried a
second time for an offense when his prior conviction for that same
offense has been set aside by his appeal.”). “It would be a high
price indeed for society to pay were every accused granted im-
munity from punishment because of any defect sufficient to con-
stitute reversible error in the proceedings leading to conviction.”
Burks, 437 US at 15.
And in cases, like here, where a jury returns poten-
tially conflicting verdicts, a defendant cannot meet his burden of
demonstrating that the jury necessarily decided an issue in his

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favor “where the trial yielded incompatible jury verdicts on the
issue the defendant seeks to insulate from relitigation.” Bravo-
Fernandez, 580 US at 19. The jury’s decision to convict the de-
fendant of a count is evidence that it did not resolve an issue in
the defendant’s favor. Id. at 19–20. Juries may reach potentially
conflicting verdicts for many reasons, including “mistake, com-
promise, or lenity.”5 Id. at 22.
Here, we cannot say that the jury in Floyd’s first
trial “necessarily decided” that Floyd acted in self-defense in kill-
ing Ortiz. It is possible that the jury may have acted in compro-
mise or in lenity in acquitting Floyd of some charges and convict-
ing him of others. Our determination in Floyd I that there was a
“reasonable probability” that, but for counsel’s deficient perfor-
mance, the outcome of Floyd’s trial would have been different does
not mean that the outcome of his trial certainly would have been
different or that the jury necessarily decided that he acted in self-
defense. Moreover, the evidence in Floyd I showed that Floyd had
firearms in his possession prior to his encounter with Ortiz, which

5 Floyd argues that he cannot be retried on any of the charges for which
he was convicted in Floyd I because a conviction on those charges would be
repugnant to his acquittals in Floyd I. This argument is meritless. Repugnant
verdicts occur when, “in order to find the defendant not guilty on one count and
guilty on another, the jury must make affirmative findings shown on the record
that cannot logically or legally exist at the same time.” McElrath v. State, 308
Ga. 104, 111 (2020) (emphasis in original). The jury in Floyd I did not make
affirmative findings on the issue of self-defense, and as discussed above, its
verdict in that case (consisting of some guilty verdicts and some not guilty ver-
dicts) can be explained by mistake, compromise, or lenity. We just don’t know
what led the jury to return those verdicts, and under these circumstances the
secrecy of jury deliberations does not permit us to look behind the curtain to
find out. See OCGA § 24-6-606 (“[A] juror shall not testify by affidavit or oth-
erwise nor shall a juror’s statements be received in evidence as to any matter
or statement occurring during the course of the jury’s deliberations or to the
effect of anything upon the jury deliberations.”).

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may have provided the jury with reason to reject Floyd’s self-de-
fense claim as to the felon in possession charge. Accordingly, we
see no reason to deviate from our holding in Floyd I that Floyd
may be retried for the charges underlying the convictions that we
reversed in that case. 318 Ga. at 324.
Judgment affirmed. All the Justices concur.

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