Walker v. StateWalker v. State
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
Walker moved to dismiss the charges for want of prosecution, and the trial court granted the motion. Three days later, the court
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
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. 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
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
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
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
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.
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
Banks, however, added a new complication to the law in this area. In the consolidated appeals considered in Banks, the trial court
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
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.,
Judgment reversed. All the Justices concur, except Colvin, J., disqualified.
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
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.