State v. Bachan
| Decision Date | 03 May 2013 |
| Docket Number | No. A13A0285.,A13A0285. |
| Citation | 321 Ga.App. 712,742 S.E.2d 526 |
| Parties | The STATE v. BACHAN. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Fredric Daniel Bright, Dist. Atty., Stephen Andrew Bradley, Asst. Dist. Atty., for Appellant.
Brenda Holbert Trammell, Madison, for Appellee.
By indictment, the State charged Shaun Michael Bachan with felony theft by taking, OCGA § 16–8–2, for unlawfully taking the statue of Bre'r Rabbit from the Uncle Remus Museum in Eatonton, Georgia. The trial court subsequently dismissed the indictment, and the State appeals. See OCGA § 5–7–1(a)(1); State v. Henderson, 283 Ga.App. 111, 112(1), 640 S.E.2d 686 (2006). For the reasons set forth below, we reverse the trial court's dismissal of the indictment.
Because the issue before us is a question of law, we do not owe deference to the trial court's ruling, and we apply the “plain legal error” standard of review. See State v. Brooks, 301 Ga.App. 355, 356, 687 S.E.2d 631 (2009); State v. Carr, 287 Ga.App. 691, 692, 652 S.E.2d 597 (2007).
The record shows that in early October 2011 Bachan waived arraignment and entered a plea of not guilty to felony theft by taking. In early November 2011, Bachan's three co-defendants entered non-negotiated 1 guilty pleas to misdemeanor theft by taking pursuant to the First Offender Act and were sentenced to community service and joint restitution for repairing the museum's statue and for restoring the courthouse lawn rabbit if so desired by the county. Bachan, a citizen of another country, was not present in court because he was in another state addressing his residency status with the United States Immigration Service, and his attorney requested that he be given the opportunity to enter a plea at a later date.
In April 2012, Bachan's attorney filed a request to enter a plea in absentia. In his sworn statement, Bachan explained he was residing outside of the country and could not come back without permission from the United States Immigration Service. He was waiting on approval for permanent residency in the United States, which could take up to eight years. Bachan asked the trial court to accept his guilty plea in absentia to misdemeanor theft by taking pursuant to the First Offender Act, accept his cash bond of $1,000, and suspend any sentence.
In mid-August 2012, during an unrecorded bench conference with the State and Bachan's attorney regarding his request to enter a plea in absentia, the trial court, sua sponte, forfeited his cash bond and dismissed the indictment against him. The trial court asked Bachan's attorney to draft an order memorializing its ruling, which specifically held:
[t]his matter ... regarding pending criminal charges on [Bachan], who is currently a non-citizen of this country, and in his native country of Trinidad, and it appearing that he will not be entitled to return to the United States due to his immigration status for some years, and that the State has no plans to retrieve [Bachan] from his native country, and it further appearing that the State had been recommending a first offender misdemeanor plea in this matter, with community service, and that the continued pendency of this matter for years does not serve justice or administration of the Courts, and that [Bachan] is content to have this Court forfeit the bond in this matter, it is hereby ORDERED AND ADJUDGED that the cash bond in this matter of $1000.00 be forfeited, and thereafter, the pending charges against [Bachan] be dismissed.
The State appeals, arguing the trial court erred by dismissing the indictment without legal cause before any evidence was presented before it.
We agree the trial court erred by sua sponte dismissing the indictment. “ ‘In the district attorney's role as an administrator of justice, he or she has broad discretion in making decisions prior to trial about [whom] to prosecute, what charges to bring, and which sentence to seek.’ ” (Citation omitted.) State v. Perry, 261...
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...with the State's right to prosecute. See State v. Santiago, 333 Ga.App. 742, 743–744, 776 S.E.2d 824 (2015) ; State v. Bachan, 321 Ga.App. 712, 714, 742 S.E.2d 526 (2013). Though we have never expressly held as much, we believe it follows from these principles that a trial court may not com......
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State v. Dorsey
..."with the State's right to prosecute without a legal basis to do so." (Citation and punctuation omitted.) State v. Bachan , 321 Ga. App. 712, 714, 742 S.E.2d 526 (2013). Among other things, a trial court is "prohibited from participating in plea negotiations," "may not oblige the State to h......
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Walker v. State
...(2020) (stating that trial courts "may dismiss criminal charges without prejudice for want of prosecution" (citing State v. Bachan , 321 Ga. App. 712, 742 S.E.2d 526 (2013) )); In the Interest of M.D.H. , 300 Ga. 46, 52, 793 S.E.2d 49 (2016) (citing Court of Appeals decision "holding in the......
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State v. Walker
...to dismiss for want of prosecution is founded on case law. See Remy , 308 Ga. at 301 (4), 840 S.E.2d 385, citing State v. Bachan , 321 Ga. App. 712, 714, 742 S.E.2d 526 (2013), for the proposition that a trial court "may dismiss criminal charges without prejudice for want of prosecution."Bu......