State v. Fiorenzo
| Decision Date | 06 February 2014 |
| Docket Number | No. A13A1886.,A13A1886. |
| Citation | 754 S.E.2d 634,325 Ga.App. 666 |
| Parties | The STATE v. FIORENZO. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Scott L. Ballard, Dist. Atty., Robert Wright Smith Jr., Asst. Dist. Atty., for Appellant.
Lloyd William Walker, Peachtree City, for Appellee.
The State appeals from the trial court's dismissal “with jeopardy” of an accusation against Vincenzo Thomas Fiorenzo for sale of a counterfeit substance. Finding that the trial court erred in dismissing the accusation “with jeopardy,” we reverse and remand.
On February 13, 2012, the State filed an accusation against Fiorenzo alleging that he unlawfully sold a substance that he represented to be MDMA (“Ecstasy”) when, in fact, the substance was not MDMA. On April 27, 2012, Fiorenzo filed a motion indicating his intent to raise the affirmative defense of entrapment, as well as a motion to reveal the identity of the “confidential and reliable informant” who assisted the State during its investigation. On September 4, 2012, Fiorenzo's motion to reveal the identity of the confidential informant was set for a hearing, but it was continued, per the request of the defendant, until the trial of the case. On March 13, 2013, a pre-trial hearing was held regarding Fiorenzo's pending motions. At the hearing, the trial court inquired whether the State's listed witness was present. The prosecutor informed the trial court that the witness was not present, but that the State could respond to the motions with another officer who was present in court. The trial court then dismissed the case “with jeopardy” based on its conclusion that the State failed to prosecute. The State filed its appeal of this case pursuant to OCGA § 5–7–1(a)(1)1 ().
1. The State argues that the trial court erred when it dismissed the criminal charges against Fiorenzo “with jeopardy” as a sanction for the State's failure to present a witness during a pre-trial motion hearing. We agree.2
“[A] defendant is not placed in jeopardy until, in a court of competent jurisdiction with a sufficient indictment, he has been arraigned, has pled, and a jury has been impaneled and sworn.” (Citation and punctuation omitted.) Alden v. State, 314 Ga.App. 439, 440, n. 10, 724 S.E.2d 451 (2012). The record in the present case does not show that a jury was sworn; therefore, the trial court erred in dismissing the case with jeopardy. See Neal v. State, 308 Ga.App. 551, 556(4)(e), 707 S.E.2d 503 (2011).
To the extent that the trial court, in dismissing the accusation “with jeopardy,” was attempting to dismiss the accusation with prejudice, we likewise conclude that the trial court was incorrect.
While we recognize the duty of the trial judge to control, in the furtherance of justice, the conduct of its officers and all other persons connected with a judicial proceeding before it, ... the power to control the proceeding of the court is subject to the proviso that in so doing a judge does not take away or abridge any right of a party under the law.
(Citation omitted.) State v. Brooks, 301 Ga.App. 355, 359, 687 S.E.2d 631 (2009). This Court has held that the trial court's power to control proceedings within its jurisdiction includes the discretion to dismiss criminal charges for want of prosecution, so long as such dismissal is without prejudice. See State v. Grimes, 194 Ga.App. 736, 736–737, 392 S.E.2d 727 (1990) (). Compare State v. Rambert, 322 Ga.App. 379, 380, 745 S.E.2d 649 (2013) ().
2. We further find that the trial court erred in the present case by dismissing the State's case at all. Although the State was unable to...
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State v. Robusto
...motions made and ruled upon prior to the impaneling of a jury or the defendant being put in jeopardy...." See State v. Fiorenzo , 325 Ga. App. 666, 667 (1), 754 S.E.2d 634 (2014) (noting that a trial court's dismissal of criminal charges for want of prosecution following only a pretrial hea......
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...vested with considerable, though not unlimited, authority and discretion in the conduct of their proceedings. State v. Fiorenzo , 325 Ga. App. 666, 667 (1), 754 S.E.2d 634 (2014) ; Ezebuiro v. State , 308 Ga. App. 282, 284 (1), 707 S.E.2d 182 (2011). As is outlined above, a trial court has ......
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...limited circumstances, such as when there is a defect on the face of an indictment or for want of prosecution. State v. Fiorenzo, 325 Ga.App. 666, 667(1), 754 S.E.2d 634 (2014) ; State v. Bachan, 321 Ga.App. 712, 714, 742 S.E.2d 526 (2013). However, a trial judge's “power to control the pro......
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