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Dismissal for Want of Prosecution Can Occur Even When It Will Functionally Be With Prejudice

Posted by Sean A. Black | Oct 19, 2021 | 0 Comments

Georgia courts have long exercised the inherent authority to dismiss criminal cases for want of prosecution.  This typically occurs when the state has not met its burden to proceed for a trial call or has simply sat on a case for an extended period of time.  It has also been used when the State has not met its statutory discovery obligations in a manner which delays the trial of the case.  In other words, it is a method of the judge exercising control of the court's docket.  

It is very clear over the length of its existence that the judge lacks the authority to make such a dismissal "with prejudice."  Civil jurisprudence allows, in certain circumstances, for a dismissal with with prejudice, which would mean that the parties legal rights were curtailed and the action could not be refiled.  So, in Georgia criminal jurisprudence, a dismissal for want of prosecution which does not describe itself as "with prejudice" is valid and does not itself bar the claim from being asserted anew.  

In 2019, the issue arose whether a court could dismiss for want of prosecution at a time after the statute of limitations had run.  The state's argument was that the effect of such a dismissal would be "with prejudice," because they would be barred from re-bringing the case.  In State v. Banks, 348 Ga. App. 876 (2019), and State v. Walker, 356 Ga. App. 170 (2020), the Georgia Court of Appeals sided with the State and held that the trial courts could not dismiss for want of prosecution after the statute of limitations had run.  

The effect of such a ruling would be to place a litigant, the district attorney's offices and solicitor general's offices, beyond the control of their trial court, with no accountability for preparing cases for trial and being prepared for trial.  But, that was the controlling law in Georgia until today.

In Walker v. State, --- Ga. --- (October 19, 2021), the Georgia Supreme Court took up the 2020 case where the Georgia Court of Appeals had limited the authority of the trial courts to dismiss cases for want of prosecution.  

The decision first examines the history of such motions and orders in Georgia, identifying cases as early as 1890 where such actions had been taken.  Such actions continued and are referenced in appellate decisions from 1904 and 1966.  Beginning with cases in 1973, the Court identified cases imposing the limitation on the trial court's authority to make such orders "with prejudice."  

It is noted that the legislature has never sought to impose an alternate scheme or to remove such judicial authority from the trial courts.  The legislature certainly would have that authority, since a dismissal for want of prosecution is not grounded in constitutional rights.

The Supreme Court then proceeds to hold that the trial court is not required to assess or consider whether a dismissal for want of prosecution will have the effect of barring the state from filing a new accusation or seeking a new indictment for the case.  In short, the trial court only need consider whether there has been a want of prosecution.  

Upon such an order being granted, it may indeed have the effect of barring additional prosecution of the matter if the statute of limitations has run and there are no applicable exceptions or tolling of such limitations period.

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.


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