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.