Walker v. State ( 2021 )

In the Supreme Court of Georgia
Decided: October 19, 2021
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 .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 SE2d 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
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
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
3
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 SE2d
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 SE2d 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.
4
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
We note that a dissent is not a “judgment,” so in essence, the four
2
additional judges dissented without opinion.
5
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
SE2d 192) (1966) (“If the defendant believes the State has delayed
beyond a reasonable time in bringing him to trial, he can make a
3 We appreciate the contributions of amici to our consideration of this
case.
6
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 SE2d 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 SE2d 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
7
prosecution. Id. at 558. See also State v. Luttrell, 207 Ga. App. 116,
116 (427 SE2d 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 SE2d 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 of acquittal” in Cooperman, the order dismissing the
accusation against Grimes “did not amount to a dismissal with
prejudice.” Grimes, 194 Ga. App. at 736. 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.” Id. at 736-737.
8
In State v. Roca, 203 Ga. App. 267 (416 SE2d 836) (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.” Id. at 267. The State reaccused the
defendant twice, and the trial court granted the defendant’s plea in
bar to the third accusation based on double jeopardy. See id. at 268.
The Court of Appeals reversed, holding that a dismissal for want of
prosecution is a dismissal without prejudice. See id. (“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
9
except the Supreme Court as precedents.”). This Court has
previously recognized as much. See State v. Remy, 308 Ga. 296, 301
(840 SE2d 385) (2020) (stating that trial courts “may dismiss
criminal charges without prejudice for want of prosecution” (citing
State v. Bachan, 321 Ga. App. 712 (742 SE2d 526) (2013))); In the
Interest of M.D.H., 300 Ga. 46, 52 (793 SE2d 49) (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.
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.
10
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
not allowed in criminal cases. See Cooperman, 147 Ga. App. at 558.
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, 194 Ga. App. at 736; Roca, 203 Ga. App. at 268. Cf. Luttrell,
207 Ga. App. at 116 (reversing where order dismissing charge for
want of prosecution recited that it was “with prejudice”);
Cooperman, 147 Ga. App. at 558 (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
11
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
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. (citing Grimes, 194 Ga. App. at 736-737).5
According to Banks, in determining whether an order
dismissing a criminal case for want of prosecution is a dismissal
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, 194 Ga. App. at 736. 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.” Id. at 736-737
(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 backwards.
12
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 id. Banks instead proposed that the appellate court
should look to see if some other source of authority might prohibit
further prosecution of the defendant, such as the applicable statute
of limitation. See id.
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
13
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
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 175 (McFadden, C.J.,
dissenting). We therefore disapprove of the Court of Appeals’
decision in Banks.6
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.
14
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.
15
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
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, 194 Ga. App. 736, 736 (392 SE2d 727) (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, 301 Ga. App. 355, 359-360
(687 SE2d 631) (2009). The General Assembly has not stepped in to
7There are likely no reported holdings about this issue before the 1970’s
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
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
of the practice. Compare, e.g., State v. Bowring, 490 A2d 667, 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, 821 SW2d 609, 613 (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