Walker v. State, S20G1471

CourtSupreme Court of Georgia
Decision Date19 October 2021
Docket NumberS20G1471



No. S20G1471

Supreme Court of Georgia

October 19, 2021


We granted certiorari in this case to decide whether a trial court's order dismissing a criminal case for want of prosecution, which does not say that it is with prejudice to refiling, nevertheless constitutes an impermissible dismissal with prejudice if the applicable statute of limitation has run. We conclude that such a dismissal order is without prejudice to refiling, and that, to the extent the statute of limitation bars the State from reaccusing the defendant, that consequence flows from the operation of the statute of limitation and not from the dismissal order. Accordingly, we reverse the Court of Appeals' judgment.

1. The record shows that on December 30, 2016, a Georgia State Patrol trooper arrested Sara Walker and issued citations for


driving under the influence of alcohol to the extent that it was less safe for her to drive, see OCGA § 40-6-391 (a) (1), and following too closely, see OCGA § 40-6-49. On August 22, 2017, Walker filed a demand for a jury trial, and the case was transferred from Holly Springs Municipal Court to Cherokee County State Court (the "trial court"). On September 22, the State filed an accusation incorporating the charges in the citations and adding charges of driving with an alcohol concentration of .08 grams or more, see OCGA § 40-6-391 (a) (5), and reckless driving, see OCGA § 40-6-390. On March 13, 2018, the State filed a motion to place the case on the dead docket pending this Court's decision in Elliott v. State, 305 Ga. 179 (824 S.E.2d 265) (2019), which the trial court granted. The decision in Elliott was issued on February 18, 2019, more than two years after the crimes alleged in the accusation.[1]


On April 16, 2019, Walker waived her right to a jury trial, and the trial court set the case for a bench trial on May 28. On May 28, the court called Walker's case for trial. Walker announced ready, but the State announced that it was not ready to proceed because the trooper who arrested Walker was not present and would not be appearing. At the court's request, the State attempted to contact the trooper, who had been properly subpoenaed, to ascertain exactly where he was and why he would not be appearing. The court gave the State a considerable amount of time to reconnect with the trooper, but the only response that the State received and conveyed to the court was that he was "on leave and out of town/Georgia." No explanation of the reason for the leave was given. Moreover, nothing in the record indicates that the State asked for a continuance or requested the entry of an order of nolle prosequi in order to extend the statute of limitation for an additional six months. See OCGA § 17-3-3.

Walker moved to dismiss the charges for want of prosecution, and the trial court granted the motion. Three days later, the court


entered a written order, nunc pro tunc to the trial date, reciting the facts and memorializing its ruling. The order stated in part:

Having considered the Defendant's motion, the Court hereby GRANTS the Defendant's motion to dismiss for want of prosecution and dismisses the charges pending against the Defendant in this case.

The order did not specify whether the dismissal was with or without prejudice to refiling. The State filed a timely notice of appeal directed to the Court of Appeals. See OCGA § 5-7-1 (a) (1) (authorizing appeal by State "[f]rom an order, decision, or judgment setting aside or dismissing any indictment . . . [or] accusation").

In a whole court decision, the Court of Appeals vacated the dismissal order. See State v. Walker, 356 Ga.App. 170 (846 S.E.2d 438) (2020). The eight-judge majority opinion relied on the Court of Appeals' recent panel decision in State v. Banks, 348 Ga.App. 876, 880-881 (825 S.E.2d 399) (2019), which held that an order dismissing a criminal case for want of prosecution outside the statute of limitation is an impermissible dismissal with prejudice because the State is barred from reaccusing the defendant. See Walker, 356 Ga.App. at 171-172.


Judge Gobeil wrote a concurrence, which was joined by four other judges See Id. at 172-174 (Gobeil, J, concurring fully and specially). Then-Chief Judge McFadden wrote a dissent, which was joined by two other judges. See id. at 174-177 (McFadden, C.J., dissenting). The dissent ended with a statement that four additional judges "concur in judgment only as to this dissent." Id. at 177.[2]

We granted Walker's petition for certiorari, and the case was orally argued on June 9, 2021. At oral argument, an issue was raised regarding the source of a trial court's authority to dismiss a criminal case for want of prosecution, regardless of whether the dismissal is with or without prejudice to refiling. We requested supplemental briefs from Walker and the State addressing this issue. We also invited the Attorney General, the Prosecuting Attorneys' Council of


Georgia, and the Georgia Association of Criminal Defense Lawyers to file amicus briefs expressing their views.[3]

2. It appears that Georgia trial courts have long exercised the authority to dismiss criminal cases for want of prosecution without prejudice. See Grantham v. State, 84 Ga. 559, 560 (11 SE 140) (1890) (noting, in a case affirming the defendant's conviction for stabbing, that a prior case against the defendant had been "dismissed for want of prosecution"). See also Herring v. State, 119 Ga. 709, 719 (46 SE 876) (1904) (noting, in appeal from conviction for subornation of perjury, that the sodomy case initiated based on the perjured statement was "dismissed by the magistrate for want of prosecution" when "no one appeared at the time appointed for the hearing of the charge"); Blevins v. State, 113 Ga.App. 413, 416 (148 S.E.2d 192) (1966) ("If the defendant believes the State has delayed beyond a reasonable time in bringing him to trial, he can make a


motion . . . that the indictment be dismissed for want of prosecution . . . .").

The General Assembly first granted the State a limited right of appeal in criminal cases in 1973. See Ga. L. 1973, p. 297, § 1 (codified as amended at OCGA § 5-7-1). Cf. State v. Jones, 7 Ga. 422, 422-423 (1849) (holding that State had no right of appeal in criminal case); State v. Moore, 128 Ga.App. 68, 68 (195 S.E.2d 752) (1973) (same). Soon after, the Court of Appeals had the opportunity to directly address dismissal of criminal cases for want of prosecution.

In State v. Cooperman, 147 Ga.App. 556 (249 S.E.2d 358) (1978), the defendants were accused of public intoxication, and the trial court entered "judgments of acquittal" on the accusations for the express reason that the State was not prepared to proceed when the court called the cases for a bench trial. Id. at 557. The Court of Appeals reversed, reasoning that "the trial judge, by entering these 'judgments of acquittal,' was in effect dismissing the two accusations with prejudice," and noting that no statutory or case authority permitted dismissal of criminal cases with prejudice for want of


prosecution. Id. at 558. See also State v. Luttrell, 207 Ga.App. 116, 116 (427 S.E.2d 95) (1993) (citing Cooperman and reversing in criminal trespass case where trial court "entered an order dismissing the charge with prejudice for want of prosecution" (emphasis added)).

In State v. Grimes, 194 Ga.App. 736 (392 S.E.2d 727) (1990), the defendant was charged with criminal trespass. When the case was called for trial, the State moved for a continuance, which the trial court granted. See id. at 736. On the continued trial date, the State was not ready, so the court dismissed the case. See id. The Court of Appeals affirmed, reasoning that trial courts are authorized to dismiss accusations and indictments, and that unlike the "judgments...

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