Understanding the Georgia Dead Docket

Posted by Sean A. Black | Sep 01, 2015 | 25 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

Tammy Ivie Reply

Posted May 18, 2017 at 08:20:48

I was arrested in 2016 for simple battery and called to check in with my bondsman and was told that my court date was july 5, 2017. After talking to my lawyer she said that was my court date from last year. As I had the same date and time Be court July 5, 2016. I called court house and the clerk said that was a dead docket.

Sean A. Black Reply

Posted May 25, 2017 at 06:06:22

If the case was dead docketed, it sounds like the prosecutor may have decided not to pursue the case. A copy of the court filings would be helpful in determining what actually happened.

Boi blu Reply

Posted May 30, 2017 at 08:10:21

In 2005 I was arrested for possession of a gun in which I had no possession off the case was dead. And I was trying to see what can I do to expunge it off my record or to close it all the way

Sean A. Black Reply

Posted May 30, 2017 at 08:27:54

It would involve pulling a recent criminal history, a copy of the court file on the dead docketed case, and filing a request with the prosecuting agency to restrict the record.

Denise long Reply

Posted Jul 15, 2017 at 19:54:52

My ex boyfriend was arrested for assaulting me, obstruction of a police officer, DUI, fleeing several other charges and it was dead docketed due to health issues. He is fine now. Can I request that the courts reopen the case.

Sean A. Black Reply

Posted Jul 16, 2017 at 09:36:32

Yes. Go back to the prosecutor on the case.

Pat Reply

Posted Jul 20, 2017 at 15:40:03

I was arrested 2 years n 2 days after a so called offense that suppose to had taken place nov 2013 in haralson county ga. It was dec 2015 when I was arrest on the 2 misdemeanors here it is 2017 and i haven’t heard anything from the courts. Does this mean my case is dead docket and can I get my record restricted or finished under GA laws bc the statue of limitation is up?

Sean A. Black Reply

Posted Jul 28, 2017 at 06:13:51

If you were arrested more than two years after the offense for misdemeanor charges, it was past the statute of limitations at that point unless there were circumstances that would cause the tolling of the statute of limitations. Your summary does not provide me sufficient information to know if any of those circumstances are present. Examples would be if you were not a resident of the state or stayed outside the state or if the victim was a minor. An accusation would need to have been filed within two years of the offense conduct. The warrant does not stop the running of the statute of limitations. Your best bet would be to run a criminal history and have someone check the court records for Haralson County.

BStone Reply

Posted Aug 09, 2017 at 00:53:21

I was arrested in May 2000 for misdemeanor petty theft in Columbus,GA. I appeared in court in July 2000 and was found not guilty and was told charges were dismissed. I did not serve any time and no fees were ordered to be paid. I am now an R.N. in the state of Florida and looking to move to Columbus, Ga. The GA board of nursing is requesting my criminal back ground. I requested such paperwork from Muskogee County and I was sent a copy stating my case was a dead docket. In previously reading what you’re stating about dead docket cases, does this mean it is still an active case and not closed?
And how would I go about getting this off of my record? Are there any time statue of limitations with this?

Sean A. Black Reply

Posted Aug 14, 2017 at 08:00:16

If the case is still showing up on your record, it is possible to request that the record be restricted through the prosecutor’s office that handled the case.

Whitney Reply

Posted Jan 14, 2018 at 07:22:01

I was arrested on hindering apprehension of a criminal in 2013 for my now husband. I am now about to try to be licensed for insurance agent and i fear that this charge on dead docket will interfere. Do i leave this case where it is or try to press the courts ? I haven’t gotten any other charges on my record before that or after. I jave voluntarily went into drug court but am doing exceptionally well in the program. Any advice greatly appreciated.

Sean A. Black Reply

Posted Jan 14, 2018 at 09:58:02

How long has it been on the dead docket? It may be eligible for dismissal unless it was dead docketed pursuant to an agreement that did not allow for records restriction or had conditions you have not fully met. If you are in drug court, is there some other charge that is also pending?

Chaumont Reply

Posted Jan 14, 2018 at 18:47:29

I had a charge for Hindering Apprehension of a fugative in 2008. The person was picked up in another state and served their time. My case was dead docket in 2009. So should it still be on my record? And what should I do if it is still there. I tried reaching Hing the clerk but they always tell me she’s not in to leave a message. And she never returns the call. I’m seeking employment and my background seems to be the hold up for several offers

lori Reply

Posted Jan 22, 2018 at 16:09:12

I was arrested April2015 for possession of drugs and firearms, I had a passenger in my car that had all the items in his bags and I was un aware of what was in them. I have not spoken to my court appointed attorney at all, I am currently serving the rest of my parole from a previous charge in prison, I have tried to contact the appropriate authorities asking about what my charges are and for a speedy trial. I have had no contact from anyone, my mother has received 4 letters stating trial dates and that I have entered a not guilty plea, but I have not appeared in court for this matter.
can you explain this to me and what should I be expecting? sense I am currently serving the rest of my parole time and my max out date is 2019, could I have a chance of this counting as time served, or will I get arrested as soon as I’m released? also, is it a normal thing for the court appointed attorney or anyone else for that matter, to never contact me on this case?

Sean A. Black Reply

Posted Jan 23, 2018 at 11:35:33

It is unfortunate that you have not been brought back to court or had an opportunity to speak to your appointed counsel.

You might speak to your counselor and see if there is any way to arrange a phone conference with that lawyer.

The risk you have is that you are not brought back to court until your sentence is complete and the prosecutor then wants you to serve more time on the new charges instead of the case being run concurrently now.

You may be able to make a request through the warden’s office for the detainer to be addressed from the trial court.

Sean A. Black Reply

Posted Jan 23, 2018 at 11:36:39

A dead docketed case can continue to appear on your criminal record. Only by filing a motion for records restriction and being successful on that motion can you move the case off of your record.

Steve Reply

Posted Jan 23, 2018 at 17:04:03

Sean. It recently came to my attention through a job application that I have a dead docket case in Clayton County GA from an arrest I had in 1978 for felony (just over 1 ounce) possession of marijuana. I was pretty young at the time and had good reason to believe it had been taken care of by my attorney. I didnt even know until 2 weeks ago that I had even been charged with a felony. I’ve spoken to someone in the DAs office and he has assured me that he is going to initiate an Administrative Dismissal. My new job is riding on this. Is there anything else I need to so to make this go away? Funny thing though I’ve been background checked twice by the Federal Government and this has never come up.

Sean A. Black Reply

Posted Feb 07, 2018 at 07:28:54

It is good that the District Attorney’s Office intends to dismiss it. That may still show as an arrest. You may want to ask them about it being dismissed and restricted.

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