Walker v. State

FINAL COPY

               S20G1471. WALKER v. THE STATE.


     BOGGS, Presiding Justice.

     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 0.08 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, 

 (

) (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




     1 The charges against Walker were all misdemeanor charges, which have

a two-year statute of limitation. See OCGA § 17-3-1 (e) (“Prosecution for
misdemeanors shall be commenced within two years after the commission of
the crime.”).
                                    2
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:



                                  3
     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, 

 (

) (2020). The eight-judge majority opinion relied on the Court of

Appeals’ recent panel decision in State v. Banks, 

,

880-881 (

) (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


                                   4
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 We note that a dissent is not a “judgment,” so in essence, the four

additional judges dissented without opinion.
      3 We appreciate the contributions of amici to our consideration of this

case.
                                       5
        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, 

 (

) (1889) (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, 

 (

) (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, 

 (

) (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, 

,

                                   6
422-423 (1849) (holding that State had no right of appeal in criminal

case); State v. Moore, 

 (

) (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, 

 (

) (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. 

. 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. 

. See also State v. Luttrell, 

 (

) (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)).

                                  7
     In State v. Grimes, 

 (

) (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 

. On the continued trial date, the State

was not ready, so the court dismissed the case. See 

 The Court of

Appeals affirmed, reasoning that trial courts are authorized to

dismiss accusations and indictments, and that unlike the

“judgments of acquittal” in Cooperman, the order dismissing the

accusation against Grimes “did not amount to a dismissal with

prejudice.” Grimes, 

. The Court of Appeals added,

“[t]herefore, the State may file another accusation against appellee

prior to the expiration of the period of limitation and prosecute him

on that accusation.” 

.

     In State v. Roca, 

 (

) (1992), the

defendant was charged with simple battery. When the case was

called for trial, the State was unable to go forward because a witness

failed to appear, and the trial court “entered an order dismissing the

case for want of prosecution.” 

. The State reaccused the

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defendant twice, and the trial court granted the defendant’s plea in

bar to the third accusation based on double jeopardy. See 

.

The Court of Appeals reversed, holding that a dismissal for want of

prosecution is a dismissal without prejudice. See 

 (“The trial court

was authorized to dismiss the accusation for want of prosecution,

but such dismissal does not amount to a dismissal with prejudice, or

an acquittal.” (emphasis added)).

     Thus, it has been the law of Georgia for decades (and appears

to have been the practice in Georgia courts for much longer) that

trial courts have the authority to dismiss criminal cases without

prejudice for want of prosecution. See Ga. Const. of 1983, Art. VI,

Sec. V, Par. III (“The decisions of the Court of Appeals insofar as not

in conflict with those of the Supreme Court shall bind all courts

except the Supreme Court as precedents.”). This Court has

previously recognized as much. See State v. Remy, 

(

) (2020) (stating that trial courts “may dismiss

criminal charges without prejudice for want of prosecution” (citing

State v. Bachan, 

 (

) (2013))); In the

                                    9
Interest of M. D. H., 

 (

) (2016) (citing Court

of Appeals decision “holding in the criminal context that before

jeopardy attaches, the remedy for failure to prosecute a case is

dismissal without prejudice”). Moreover, the State and its amici

point to no statute that purports to eliminate or limit this

longstanding practice, and we see no compelling reason to disturb

the well-established law in this area.4 Accordingly, we turn to the

specific issue that we granted the State’s petition for certiorari to

address.

      3.    There is no reason to think that the trial court’s order

dismissing the charges against Walker for want of prosecution was

a dismissal with prejudice. The order did not say that the dismissal

was with prejudice, and it has been the law of Georgia for more than

40 years that dismissals with prejudice for want of prosecution are



      4 We note that the alternative of the trial court ordering the State to call

its first witness, the State not being prepared to present evidence, and the trial
court entering a directed verdict of acquittal always precludes further
prosecution, whereas entering a dismissal without prejudice for want of
prosecution may allow the State to reinitiate the prosecution so long as the
State does so within the applicable statute of limitation and complies with
other applicable laws.
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not allowed in criminal cases. See Cooperman, 

.

Moreover, since the early 1990s, the Court of Appeals has construed

orders dismissing criminal charges for want of prosecution that do

not mention prejudice to be dismissals without prejudice. See

Grimes, 

; Roca, 

. Cf. Luttrell,

 (reversing where order dismissing charge for

want of prosecution recited that it was “with prejudice”);

Cooperman, 

 (reversing where trial court entered

“judgments of acquittal” for want of prosecution, which Court of

Appeals correctly recognized was trial court “in effect dismissing the

two accusations with prejudice”).

     Banks, however, added a new complication to the law in this

area. In the consolidated appeals considered in Banks, the trial court

entered uniform orders dismissing 26 misdemeanor accusations “for

want of prosecution” due to the State’s failure to provide the

defendants with a list of the witnesses against them as required by

the Criminal Procedure Discovery Act. Banks, 348 Ga. App. at 876.

After noting that the dismissal orders “did not specify whether the

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dismissals were with or without prejudice,” the Court of Appeals

held that

     in order to determine whether the dismissals in the cases
     at hand amounted to impermissible dismissals with
     prejudice, the relevant question is whether, at the time of
     the dismissal, the State could have re-accused the
     defendants prior to the expiration of the period of
     limitation.

Id. at 880 (citing Grimes, 

).5

     According to Banks, in determining whether an order

dismissing a criminal case for want of prosecution is a dismissal

with prejudice, which is not permitted, an appellate court should not

be guided by the text of the dismissal order as informed by the

background rule against dismissals with prejudice for want of

prosecution. See 

 Banks instead proposed that the appellate court

should look to see if some other source of authority might prohibit


     5 Banks misread Grimes. As explained above in Division 2, in Grimes,

the Court of Appeals first determined that the order dismissing the accusation
for want of prosecution did not amount to a dismissal with prejudice. See
Grimes, 

. The Court of Appeals then said: “Therefore, the
State may file another accusation against appellee prior to the expiration of
the period of limitation and prosecute him on that accusation.” 

(emphasis added). In other words, Grimes said that because the trial court’s
order was not a dismissal with prejudice, the State could reaccuse Grimes —
not the other way around. Thus, Banks had Grimes backward.
                                     12
further prosecution of the defendant, such as the applicable statute

of limitation. See 

     We see no sound legal reason for adopting that approach.

Nothing in Cooperman, Grimes, Roca, or Luttrell requires an

appellate court to look beyond the trial court’s written ruling to

determine whether it is a permissible dismissal without prejudice or

instead a dismissal with prejudice, which is not permitted.

Moreover, it is not clear how the trial court would ascertain whether

some other source of authority would prevent the State from

reinitiating the prosecution. For example, it is not clear how a trial

court would ascertain if the statute of limitation had been tolled, see,

e.g., OCGA § 17-3-2 (excluding certain periods in determining

whether statute of limitation has run), or if two indictments

charging the same offense or offenses had been quashed, see OCGA

§ 17-7-53.1. In addition, if a trial court has the authority to dismiss

a criminal case without prejudice for want of prosecution, it is

unclear why the running of a statute of limitation would suddenly

strip the court of that power. In such situations, it is the statute of

                                  13
limitation that prevents the State from recommencing a prosecution

against the defendant; the dismissal order itself stands as no

barrier. As the dissent in the Court of Appeals here aptly stated,

“The state is barred from bringing the case [against Walker] again,

not by operation of the trial court’s order, but by operation of the

statute of limitation.” Walker, 356 Ga. App. at 174 (McFadden, C. J.,

dissenting). We therefore disapprove of the Court of Appeals’

decision in Banks.6

     It follows that the Court of Appeals erred in holding that the

trial court’s order dismissing the charges against Walker for want of

prosecution was an impermissible dismissal with prejudice.

Accordingly, we reverse the Court of Appeals’ judgment.

     Judgment reversed. All the Justices concur, except Colvin, J.,
disqualified.




     6 As noted above, in Banks, the trial court entered orders dismissing

numerous misdemeanor accusations “for want of prosecution” based on the
State’s failure to comply with the requirements of the Criminal Procedure
Discovery Act. Banks, 348 Ga. App. at 876. We express no opinion on whether
trial courts may dismiss criminal charges for want of prosecution based on
discovery violations.
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     NAHMIAS, Chief Justice, concurring.

     As demonstrated by the supplemental briefing that this Court

received from the parties and amici curiae after oral arguments, the

source of authority for Georgia trial courts to dismiss criminal cases

without prejudice for “want of prosecution” is at best murky and

debatable. Nevertheless, as the Court’s opinion explains, there are


                                 15
hints in some old reported decisions that this is an ancient practice

in Georgia courts,7 and the practice has been expressly authorized

by the Court of Appeals for more than 30 years now. See State v.

Grimes, 

 (

) (1990).

      The practice does not appear to have caused major workability

problems or obvious injustices, and a trial court’s decision to dismiss

a case for want of prosecution is regulated by appellate review for

abuse of discretion. See State v. Brooks, 

(

) (2009). The General Assembly has not stepped in to

constrain or prohibit the practice (as the legislature would be free to

do, because the practice is rather clearly not required by the federal

or Georgia Constitution). The practice has long been authorized in

federal courts, first by decision, see, e.g., Ex parte Altman, 34 FSupp.

106, 108 (S.D. Cal. 1940), and later by rule, see Fed. R. Crim. P. 48

(b). And the courts of our sister states are divided as to the validity




      7 There are likely no reported holdings about this issue before the 1970s

because the State could not appeal from such trial court dismissals until 1973,
and defendants who requested or benefitted from such dismissals could not
complain about those favorable decisions on appeal.
                                      16
of the practice. Compare, e.g., State v. Bowring, 

, 668-

669 (Me. 1985) (allowing dismissal of a criminal case under Maine

law “when the party bringing the action fails to prosecute it

diligently”), with, e.g., State v. Johnson, 

 (Tex. Ct.

Crim. App. 1991) (en banc) (holding that Texas law does not

authorize dismissal of a criminal case for want of prosecution

without the prosecutor’s consent).

     For these reasons, although I might have reached a different

conclusion if this issue were coming here as a novel question, I agree

with the Court that at this point in Georgia jurisprudence, we should

leave the practice undisturbed and decide this case under its rubric.

With this explanation, I join the Court’s opinion in full.




                                  17
                      Decided October 19, 2021.

       Certiorari to the Court of Appeals of Georgia — 

.

       D. Benjamin Sessions, for appellant.

       C. Todd Hayes, Solicitor-General, Sara M. Grainger, David

M. McElyea, Michelle L. Dissman, Assistant Solicitors-General, for

appellee.

       Peter J. Skandalakis, Robert W. Smith, Jr., Christopher M.

Carr, Attorney General, Miles K. Skedsvold, Assistant Attorney

General, Andrew A. Pinson, Solicitor-General, Ross W. Bergethon,

Assistant Solicitor-General, Kimberly A. Dymecki, Gregory A.

Willis, Hunter J. Rodgers, Andrew S. Fleischman, amici curiae.




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