Understanding the Georgia Dead Docket

Posted by Sean A. Black | Sep 01, 2015 | 7 Comments

The legal dictionary definition of “dead docketing” is a procedural device by which ‘the prosecution is postponed indefinitely but may be reinstated at any time at the pleasure of the court.

That may not be very helpful to many clients in understanding what has happened to the case against them and what may happen in the future. In fact, the answer to those questions may depend a great deal upon the circumstances leading to the dead docket order.

Dockets, So Many Dockets

Let's start with the basics. The clerk of court maintains a list of criminal cases. This is referred to as a docket. The list used to be maintained in a docket book. These days, the list is usually maintained on computer. When a case is closed by conviction, plea or dismissal, the case comes off of the active docket and goes to the closed docket.

Sometimes, a case is not closed, but there is a need to have it off of the active docket. Out of that need, there arose the dead docket. Once dead docketed, the case will not appear on the active trial calendar unless the judge orders it placed back on the active trial calendar. The first Georgia law authorizing such a docket was in 1883. The current version appears at OCGA § 15-6-61:

It is the duty of the clerk of superior court ... [t]o keep in the clerk's office ... [a]n automated criminal case management system which shall contain ... entries of cases which are ordered dead docketed at the discretion of the presiding judge and which shall be called only at the judge's pleasure. When a case is thus dead docketed, all witnesses who may have been subpoenaed therein shall be released from further attendance until resubpoenaed; . . .”

The dead docket is a list of inactive criminal cases which have not actually been terminated. However, many cases placed on the dead docket die there without any further action.

Dead Docketing Does Not End the Case

The courts have clearly stated that dead docketing is not a dismissal or a termination of the prosecution in the defendant's favor. The case is still pending. It can be called for trial upon the judge ordering it back onto the active trial calendar. Since it is still pending, the defendant can still make a demand for trial.

Dead Docketing Ends the Surety's Obligation

Typically, when a person is arrested on a criminal charge, they are required to post bond. This is usually accomplished by the pledge of a surety to make sure that the defendant comes to court and to pay a certain sum of money if the defendant does not appear in court.

OCGA §§ 17-6-31(c) provides that:

The principal shall ... be considered surrendered by plea of guilty or nolo contendere ... or if the principal is present in person when the jury or judge ... finds the principal guilty or if the judge dead dockets the case prior to entry of judgment and, upon such plea or finding of guilty or dead docketing, the surety shall be released from liability.

The same statute goes on, at OCGA §17-6-31(d)(1)(F) to provide that “the surety shall be released from liability if, prior to entry of judgment, there is ...[a] dead docket ...”

Courts have Set the Rules

When the legislature passes an act, the terms of the act are then placed into the code. When complete, the act is said to have been codified. Other than the examples above, there are no statutes, or laws, that set out how the dead docket operates. Instead, these rules have been set out by courts in case law.

Requirement of Indictment or Accusation

An indictment or accusation is the method by which a criminal case is formally placed on the active criminal docket. It makes sense that the case needs to have been indicted or accused in order for it to be moved from the active docket to the dead docket.

Who Can Dead Docket? Who Can Ask for It?

Both superior and state courts have active criminal dockets maintained by the Clerk of Court and therefore have authority to manage their case load by placing cases onto the dead docket. The Superior Court Judge or the State Court Judge presiding over a particular case can order it placed onto the dead docket.

Either the prosecutor or the defense attorney can move for dead docketing. As with any other court action, notice to the opposing side is required.

I Don't Want a Dead Docket, What Can I Do?

A defendant has a right to object to the entry of a dead docket, and it is an abuse of discretion for a judge to order a case dead docketed over the objection.

The prosecution might also be expected to object in certain circumstances to a defendant's motion to dead docket. It is not clear that grant of the motion over a prosecution objection would be an abuse of discretion.

It does appear that in that situation, it might be difficult for the prosecution to correct the perceived wrong, since an order dead docketing a case is not a dismissal of the charges, so it would not be appealable under OCGA § 5-7-1(a), which permits prosecutors to appeal orders
dismissing indictments or accusations.

Why Do Cases Get Dead Docketed?

There are many reasons for a case to be dead docketed.

For instance, if a defendant is incarcerated in another state, the prosecution might not be willing to dismiss the case but also might not be willing to go to the effort and expense in obtaining an interstate transfer of a prisoner. In such a situation, a detainer would be placed on the person and the case would be dead docketed until the person comes into custody upon release by the other state.

A case might be dead docketed because of weak, missing or questionable evidence.

A case might be dead docketed because the victim does not wish for the case to be prosecuted and the prosecution is willing to give the defendant a chance to show that there will not be future offenses.

The Statute of Limitations Does Not Apply

The statute of limitations applies to the initiation of a case. It sets a time limit during which prosecution must begin. Since a dead docketed case has already been indicted or accused, the case has already been initiated and the statute of limitations has been satisfied.

Constitutional Speedy Trial Still Applies

The time that a case is on the dead docket can be considered adversely to the state on a constitutional speedy trial motion if prosecution of the case is reactivated.

How Does the Case Get Brought Back to the Active Calendar?

The prosecution or defense can move the court for a return of the case to the active docket. Notice should be given to the other party.

What Does a Defendant Get Out of a Dead Docket?

First and foremost, dead docketing releases a defendant from the requirement of appearing in court for calendar calls and other hearings related to active cases.

Second, dead docketing releases the bond. So, your surety is no longer on the hook for ensuring the defendant's appearance. If there is a cash bond, it should be returned.

Third, in a DUI case, a dead docket is likely enough to cause the set aside of a pending administrative suspension.

Fourth, and perhaps most important, if a case remains on the dead docket for at least twelve months, the defendant can request records restriction under Georgia law.

Fifth, many cases placed on the dead docket never return to life. So, in many cases, the defendant will not face future prosecution for this charge.

However, since the case is not over, the defendant cannot initiate an action to recover damages for malicious prosecution or malicious arrest arising out of that criminal case. Such actions require dismissal or acquittal before they can be initiated.

About the Author

Sean A. Black

Sean A. Black is a 1992 graduate of the Emory University School of Law. He has been in private practice in Toccoa, Georgia since June 1, 1992.


Andre Jackson Reply

Posted Jun 13, 2016 at 13:12:13

Thank you for posting this blog, Attorney Black. Your explanation of Georgia’s “dead docketing” of criminal cases is very clear and easy to follow and understand, especially for a lay person like myself. Great job.

Mike yancey Reply

Posted Oct 21, 2016 at 01:42:53

I was arrested in may 2015 for child molestation on my 6 yr I did not do anything to my son I have two sons the other is 4 at time his 5 an my ex she coached my son well I did 9 mounths of hell an during time pick juror’s before trail the da deaf docketed my case I been trying to get money for a lawyer to see my sons but I can’t get work I lost my jobs my home my car but most importantly my kids I’m prying ever day wat do I do any help I have seen a doctor for stress I have PTSD now from this I am 31 this has been hard on my family my ex slander my name ever where here in GA Brunswick my ex tried to get married right as I was in jail but has now moved into another man’s home getting married again um more to story but im trying to be short..tores trail she took my oldest to public defender office to say now Mikey my our son is saying if they put him on stand he said daddy didn’t but I don’t understand why they dead docketed me they have cut my public defender off claim my case is closed case . Why didn’t they tell me there sorry put her in jail for damageing our babies minds an so on they keep me in jail for a week after I was placed on dead docket any help please

Sean A. Black Reply

Posted Oct 21, 2016 at 05:56:02

Any sexual assault case, but child sexual assault cases especially, are very challenging. There is a natural willingness to accept such accusations at face value. People think, why would a child lie about such a thing? But, it can and does happen. In some cases, as you describe, it is because the child is being manipulated for someone else’s purposes.

From your description, the prosecutor decided, with your child recanting his statement, that the case was not strong enough to take to court. Notwithstanding that, the prosecutor did not dismiss the charges against you. Instead, the prosecutor placed the case on a dead docket. The case is still pending, but it is off of the active trial calendar, and the prosecutor has no intention to proceed with your prosecution. This could change if other evidence develops.

With a public defender, there is not much else that they can do to assist you beyond seeing the case dead docketed and securing your release from jail. In truth, that is a lot and they consider that they have done a good job for you. They have.

Unfortunately, lawyers, private or public, are not always able to rebuild people’s lives after a false accusation.

The fact that the case can be brought back onto the active trial calendar puts you in a very difficult situation relative to your children. You should sit down with a domestic lawyer in your area to explore your options. But, consider that efforts by you to establish contact and visitation or custody with your children may increase your ex’s motivations to pressure or coach both children to make further accusations against you of either past events or future events. You likely need the involvement of not only a lawyer but mental health professionals to assist your children and to evaluate both you and your ex.

Contact with your children without those protections in place to monitor your contact and to insulate against additional accusations would be dangerous.

Natalyah Reply

Posted Jan 23, 2017 at 09:01:38

I was arrested for burglary for pawn 2 videos games. That were in a burglary I had no part of. Even tho I wasn’t apart of it, I was told I would be charge because the items were stolen. I have been out on bail for 2 years now. I have not went to court. I called the clerk of courts and she tells me I’m not in their system. I also call the jail and they can’t give me information. No one has info on my case or arrest, but it’s on my record and coming up on background checks for employment. What should I do? What is really going on?

Sean A. Black Reply

Posted Jan 23, 2017 at 09:58:12

The statute of limitations is four years. It is possible that the prosecutor’s office either has not decided what to do with your case or has decided not to prosecute it but did not put that decision onto the record. It doesn’t sound like a very good case, but you never can tell. It depends on the particular prosecutor’s office whether it makes sense to say anything at this stage. You certainly don’t want to poke a sleeping bear and end up having to defend yourself in court. Waiting out the statute of limitations may be your best choice.

Sean A. Black Reply

Posted Mar 22, 2017 at 10:15:33

I am sorry that his lawyer is not communicating with him. Were there bond restrictions which limited him in him movements and prevented him from leaving the state? If not, then there shouldn’t be any problem with that. He should still keep the clerk of court informed of his correct residence/service address.

The statute of limitations refers to the time from the offense until the case is brought into court by the filing of a citation, accusation or indictment. From your description, that was met. With the case on dead docket, there are still constitutional speedy trial issues. Also, under the new records restriction law, because the case has been on the dead docket for more than twelve months, is eligible to move the court to restrict the record of arrest. That is not an action you want to take without a lawyer and without the lawyer having the opportunity to know everything about the case.

Jimmy lewis Reply

Posted Mar 27, 2017 at 22:45:42

Hello, I was arrested in 2006 for forgery in the first degree, what really happened was that one of my friend needed help to cash his check and so I was at the time, being a good friend deposited into my account, come to find out, the check was a fraud check, it bounced my account. Went to court for it and had to take a pretty trial intervention program and my case was placed on dead docket

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