State v. Walker

• Decision Date: 02 July 2020
• Docket Number: A20A0544
• Citation: 356 Ga.App. 170,846 S.E.2d 438
• Parties: The STATE v. WALKER.
• Court: Georgia Court of Appeals

356 Ga.App. 170

846 S.E.2d 438

The STATE

v.WALKER.

A20A0544

Court of Appeals of Georgia.

July 2, 2020

C. Todd Hayes, Solicitor-General, David M. McElyea, Sara M. Grainger, Emily C. Labutta, Assistant Solicitors-General, for appellant.

The Sessions Law Firm, D. Benjamin Sessions, for appellee.

Hodges, Judge.

After the State's witness failed to appear at a bench trial, the trial court dismissed this misdemeanor prosecution of Sara Walker. The dismissal order did not specify whether the dismissal was with or without prejudice. The State filed the instant appeal, arguing that the dismissal order amounted to an impermissible dismissal with prejudice because the statute of limitation had expired, thus barring the State from filing another accusation. Because the trial court's dismissal functioned as an impermissible dismissal with prejudice, we vacate the judgment below and remand the case.

Walker was arrested on December 30, 2016, and ultimately charged with driving under the influence of alcohol – per se ( OCGA § 40-6-391 (a) (5) ), driving under the influence of alcohol – less safe ( OCGA § 40-6-391 (a) (1) ), reckless driving ( OCGA § 40-6-390 ), and following too closely ( OCGA § 40-6-49 ). The case was called for a bench trial on May 28, 2019, outside the two-year statute of limitation for misdemeanor offenses. See OCGA § 17-3-1 (e) ("Prosecution for misdemeanors shall be commenced within two years after the commission of the crime.").

At the bench trial, when Walker announced ready, the State declared that it was not ready because the arresting officer, who had been properly subpoenaed, was unavailable. Although the trial court found that the State "was given a long time to attempt to reconnect with the officer on this issue[,]" the officer could not be reached. Walker moved to dismiss the charges for want of prosecution, and on May 31, 2019, the trial court granted that motion nunc pro tunc to May 28, 2019, without stating whether the dismissal was with or without prejudice. The State then filed the instant appeal.¹

On appeal, the State contends that because the two-year statute of limitation for prosecuting misdemeanors had expired and as a result, it could not re-accuse Walker, the unspecified dismissal necessarily functioned as an impermissible dismissal with prejudice.²

Our law is abundantly clear that criminal charges may not be dismissed with prejudice. See State v. Luttrell , 207 Ga. App. 116, 427 S.E.2d 95 (1993) (trial court lacks authority to enter dismissal with prejudice for want of prosecution in criminal case); State v. Cooperman , 147 Ga. App. 556, 558 (2), 249 S.E.2d 358 (1978) ("The Civil Practice Act ( [ OCGA § 9-11-41 (b) ] ) provides for dismissals with prejudice of civil cases, but the court knows of no statutory or case authority which permits dismissals in criminal cases."). In our recent opinion, State v. Banks , 348 Ga. App. 876, 879, 825 S.E.2d 399 (2019), as in this case, the trial court dismissed charges against a number of defendants for want of prosecution in an order that did not specify whether the dismissals were with or without prejudice. As to the dismissals entered in cases where the statute of limitation had indisputably run, thus barring the State from re-accusing, this Court found that those dismissals functioned as dismissals with prejudice. Id. at 880, 825 S.E.2d 399, citing State v. Grimes , 194 Ga. App. 736, 736-737, 392 S.E.2d 727 (1990) (affirming dismissal of accusation where "the State may file another accusation against appellee prior to the expiration of the period of limitation and prosecute him on that accusation"). In the instant appeal, the State is barred from re-accusing Walker because the statute of limitation has run and the State has not sought by nolle prosequi or other means to extend that limitation period. Thus, the trial court's unspecified dismissal necessarily functions as a dismissal with prejudice, given that there is no longer any possibility for the State to re-accuse Walker. See State v. Roca , 203 Ga. App. 267, 268, 416 S.E.2d 836 (1992) (unspecified dismissal for want of prosecution in criminal case did not amount to a dismissal with prejudice or acquittal where "State could reaccuse the defendant within the applicable period of limitations").

Trial courts are 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 the authority to dismiss criminal accusations without prejudice, but it lacks the authority to dismiss them with prejudice. Because the trial court's unspecified dismissal necessarily functioned as a dismissal with prejudice given that the statute of limitation barred the State from re-accusing, the trial court's authority is neither implicated nor impinged by our decision, as the trial court had no authority to do what our law prohibits it from doing.

Judgment vacated and case remanded.

Reese, P. J., and Mercier, J., concur. Dillard, P. J., Gobeil, Coomer, Pipkin, and Colvin, JJ., concur fully and specially. McFadden, C. J., Barnes, P. J., and Doyle, P. J., dissent. Miller, P. J., Rickman, Brown, and Markle, JJ., concur in the judgment only of the dissent.

Gobeil, Judge, concurring fully and specially.

I join fully in the majority opinion, but write separately to further clarify that the dismissal of an accusation after the expiration of the applicable statute of limitation impermissibly abridges the State's right to prosecute where the court lacks a legal basis to do so.

In the [prosecuting] 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. The state has both the duty and the right to protect the security of its citizens by prosecuting crime. Georgia Constitution of 1983, Art. I, Sec. I, Par. II[.]

State v. Perry , 261 Ga. App. 886, 887, 583 S.E.2d 909 (2003) (citation, punctuation, and footnote omitted). See also OCGA § 17-1-2 ("A ‘penal action’ is an action allowed in pursuance of public justice under particular laws. If no special officer is authorized to be the plaintiff therein, the state, the Governor, the Attorney General, or the prosecuting attorney may be the plaintiff.").

In State v. Banks , we acknowledged:

"It is well settled that a trial court is vested with considerable discretion in its conduct of court proceedings." Ezebuiro v. State , 308 Ga. App. 282, 284 (1), 707 S.E.2d 182 (2011) (citation and punctuation omitted); State v. Brooks , 301 Ga. App. 355, 359, 687 S.E.2d 631 (2009) ; State v. Colquitt , 147 Ga. App. 627, 628-629, 249 S.E.2d 680 (1978). While trial courts are authorized to dismiss accusations, this authority is not unlimited, and a trial court "abuses its discretion when it interferes with the State's right to prosecute by dismissing an accusation without a legal basis to do so." Brooks , 301 Ga. App. at 359 .

348 Ga. App. 876, 880, 825 S.E.2d 399 (2019) (footnote omitted). Furthermore, the trial court's discretion "must not be abused and it may not be exercised in such a way as to involve a deprivation of a right." Loomis v. State , 78 Ga. App. 153, 163, 51 S.E.2d 13 (1948). Thus, a court's inherent " ‘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.’ " Perry , 261 Ga. App. at 887, 583 S.E.2d 909, quoting Colquitt , 147 Ga. App. at 629, 249 S.E.2d 680. This limitation applies to the benefit of both parties.

Accordingly, while we acknowledge and respect a trial judge's wide discretion in the course of controlling judicial proceedings and officers of the court, that discretion is not unbounded. Loomis , 78 Ga. App. at 163, 51 S.E.2d 13. And, the dissent concedes as much, acknowledging that trial courts may not dismiss criminal cases with prejudice. But in proposing to overrule Banks by upholding the trial court's dismissal following the expiration of the statute of limitation, the dissent's approach would permit trial courts to do just that. In other words, whether it is labeled a dismissal without prejudice or otherwise, the dissent effectively sanctions trial courts doing indirectly what they cannot do directly.

In Banks , we recognized that the trial court's dismissal of a criminal case where the statute of limitation had expired (and had not been extended) effectively barred the State from re-accusing a defendant. 348 Ga. App. at 880-881, 825 S.E.2d 399. To permit a trial court to effectively dismiss a case with prejudice would elevate form over substance and allow a court to impermissibly dismiss a criminal prosecution with prejudice. See State v. Luttrell , 207 Ga. App. 116, 116, 427 S.E.2d 95 (1993) (a trial court is without authority to dismiss criminal charges for want of prosecution if such dismissal amounts to a dismissal with prejudice ).

The dissent claims that Banks promotes delayed prosecutions and strips trial courts of their power to dismiss without prejudice. What the dissent overlooks, however, is that there are remedies for prosecutorial delays and abuses shy of effectively permitting dismissals with prejudice. See, e.g., State v. Fly , 193 Ga. App. 190, 191, 387 S.E.2d 347 (1989) (where State refused to go forward with trial on the ground that it was not prepared to go forward with trial, court "regarded the issue as having been joined and the case as ripe for trial, and there being no evidence presented by the State, which had the burden to present its evidence then, the court entered an acquittal"); OCGA §§ 15-1-3 (4) ("[e]very court has power[ ] [t]o control, in the furtherance of justice, the conduct of its officers and all other persons connected with a judicial proceeding before it, in every...