In the Supreme Court of Georgia

Decided: October 19, 2021

S20G1471. WALKER v. THE STATE.

 BOGGS, Presiding Justice.

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 
2

driving under the influence of alcohol to the extent that it was less 

safe for her to drive, see OCGA § 40-6-391 (a) (1), and following too 

closely, see OCGA § 40-6-49. On August 22, 2017, Walker filed a 

demand for a jury trial, and the case was transferred from Holly 

Springs Municipal Court to Cherokee County State Court (the “trial 

court”). On September 22, the State filed an accusation 

incorporating the charges in the citations and adding charges of 

driving with an alcohol concentration of .08 grams or more, see 

OCGA § 40-6-391 (a) (5), and reckless driving, see OCGA § 40-6-390.

On March 13, 2018, the State filed a motion to place the case on the 

dead docket pending this Court’s decision in Elliott v. State, 305 Ga. 

179 (824 SE2d 265) (2019), which the trial court granted. The 

decision in Elliott was issued on February 18, 2019, more than two 

years after the crimes alleged in the accusation.1

 

1 The charges against Walker were all misdemeanor charges, which have 

a two-year statute of limitation. See OCGA § 17-3-1 (e) (“Prosecution for 

misdemeanors shall be commenced within two years after the commission of 

the crime.”).
3

On April 16, 2019, Walker waived her right to a jury trial, and 

the trial court set the case for a bench trial on May 28. On May 28, 

the court called Walker’s case for trial. Walker announced ready, but

the State announced that it was not ready to proceed because the 

trooper who arrested Walker was not present and would not be 

appearing. At the court’s request, the State attempted to contact the 

trooper, who had been properly subpoenaed, to ascertain exactly 

where he was and why he would not be appearing. The court gave 

the State a considerable amount of time to reconnect with the 

trooper, but the only response that the State received and conveyed 

to the court was that he was “on leave and out of town/Georgia.” No 

explanation of the reason for the leave was given. Moreover, nothing 

in the record indicates that the State asked for a continuance or 

requested the entry of an order of nolle prosequi in order to extend 

the statute of limitation for an additional six months. See OCGA 

§ 17-3-3.

Walker moved to dismiss the charges for want of prosecution, 

and the trial court granted the motion. Three days later, the court
4

entered a written order, nunc pro tunc to the trial date, reciting the 

facts and memorializing its ruling. The order stated in part:

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 OCGA § 5-7-1 (a) (1)

(authorizing appeal by State “[f]rom an order, decision, or judgment 

setting aside or dismissing any indictment . . . [or] accusation”).

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. 
5

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 We note that a dissent is not a “judgment,” so in essence, the four 

additional judges dissented without opinion.
6

Georgia, and the Georgia Association of Criminal Defense Lawyers 

to file amicus briefs expressing their views.

3

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 

 

3 We appreciate the contributions of amici to our consideration of this 

case.
7

motion . . . that the indictment be dismissed for want of prosecution 

. . . .”).

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 OCGA § 5-7-1). Cf. State v. Jones, 7 Ga. 422, 

422-423 (1849) (holding that State had no right of appeal in criminal 

case); State v. Moore, 128 Ga. App. 68, 68 (195 SE2d 752) (1973) 

(same). Soon after, the Court of Appeals had the opportunity to 

directly address dismissal of criminal cases for want of prosecution.

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 
8

prosecution. Id. at 558. See also State v. Luttrell, 207 Ga. App. 116, 

116 (427 SE2d 95) (1993) (citing Cooperman and reversing in 

criminal trespass case where trial court “entered an order 

dismissing the charge with prejudice for want of prosecution” 

(emphasis added)).

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.
9

In State v. Roca, 203 Ga. App. 267 (416 SE2d 836) (1992), the 

defendant was charged with simple battery. When the case was 

called for trial, the State was unable to go forward because a witness 

failed to appear, and the trial court “entered an order dismissing the 

case for want of prosecution.” Id. at 267. The State reaccused the 

defendant twice, and the trial court granted the defendant’s plea in 

bar to the third accusation based on double jeopardy. See id. at 268. 

The Court of Appeals reversed, holding that a dismissal for want of 

prosecution is a dismissal without prejudice. See id. (“The trial court 

was authorized to dismiss the accusation for want of prosecution, 

but such dismissal does not amount to a dismissal with prejudice, or 

an acquittal.” (emphasis added)).

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 Ga. Const. of 1983, Art. VI, 

Sec. V, Par. III (“The decisions of the Court of Appeals insofar as not 

in conflict with those of the Supreme Court shall bind all courts 
10

except the Supreme Court as precedents.”). This Court has 

previously recognized as much. See State v. Remy, 308 Ga. 296, 301

(840 SE2d 385) (2020) (stating that trial courts “may dismiss 

criminal charges without prejudice for want of prosecution” (citing 

State v. Bachan, 321 Ga. App. 712 (742 SE2d 526) (2013))); In the

Interest of M.D.H., 300 Ga. 46, 52 (793 SE2d 49) (2016) (citing Court 

of Appeals decision “holding in the criminal context that before 

jeopardy attaches, the remedy for failure to prosecute a case is 

dismissal without prejudice”). Moreover, the State and its amici 

point to no statute that purports to eliminate or limit this 

longstanding practice, and we see no compelling reason to disturb 

the well-established law in this area.4 Accordingly, we turn to the 

specific issue that we granted the State’s petition for certiorari to 

address.

 

4 We note that the alternative of the trial court ordering the State to call 

its first witness, the State not being prepared to present evidence, and the trial 

court entering a directed verdict of acquittal always precludes further 

prosecution, whereas entering a dismissal without prejudice for want of 

prosecution may allow the State to reinitiate the prosecution so long as the 

State does so within the applicable statute of limitation and complies with 

other applicable laws.
11

3. There is no reason to think that the trial court’s order 

dismissing the charges against Walker for want of prosecution was 

a dismissal with prejudice. The order did not say that the dismissal 

was with prejudice, and it has been the law of Georgia for more than 

40 years that dismissals with prejudice for want of prosecution are 

not allowed in criminal cases. See Cooperman, 147 Ga. App. at 558. 

Moreover, since the early 1990s, the Court of Appeals has construed 

orders dismissing criminal charges for want of prosecution that do 

not mention prejudice to be dismissals without prejudice. See

Grimes, 194 Ga. App. at 736; Roca, 203 Ga. App. at 268. Cf. Luttrell, 

207 Ga. App. at 116 (reversing where order dismissing charge for 

want of prosecution recited that it was “with prejudice”); 

Cooperman, 147 Ga. App. at 558 (reversing where trial court entered 

“judgments of acquittal” for want of prosecution, which Court of 

Appeals correctly recognized was trial court “in effect dismissing the 

two accusations with prejudice”).

Banks, however, added a new complication to the law in this 

area. In the consolidated appeals considered in Banks, the trial court 
12

entered uniform orders dismissing 26 misdemeanor accusations “for 

want of prosecution” due to the State’s failure to provide the 

defendants with a list of the witnesses against them as required by 

the Criminal Procedure Discovery Act. Banks, 348 Ga. App. at 876. 

After noting that the dismissal orders “did not specify whether the 

dismissals were with or without prejudice,” the Court of Appeals 

held that

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 

 

5 Banks misread Grimes. As explained above in Division 2, in Grimes, 

the Court of Appeals first determined that the order dismissing the accusation 

for want of prosecution did not amount to a dismissal with prejudice. See 

Grimes, 194 Ga. App. at 736. The Court of Appeals then said: “Therefore, 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 

(emphasis added). In other words, Grimes said that because the trial court’s 

order was not a dismissal with prejudice, the State could reaccuse Grimes –

not the other way around. Thus, Banks had Grimes backwards.
13

with prejudice, which is not permitted, an appellate court should not 

be guided by the text of the dismissal order as informed by the 

background rule against dismissals with prejudice for want of 

prosecution. See id. Banks instead proposed that the appellate court 

should look to see if some other source of authority might prohibit

further prosecution of the defendant, such as the applicable statute 

of limitation. See id.

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., OCGA § 17-3-2 (excluding certain periods in determining 

whether statute of limitation has run), or if two indictments 
14

charging the same offense or offenses had been quashed, see OCGA 

§ 17-7-53.1. In addition, if a trial court has the authority to dismiss 

a criminal case without prejudice for want of prosecution, it is 

unclear why the running of a statute of limitation would suddenly 

strip the court of that power. In such situations, it is the statute of 

limitation that prevents the State from recommencing a prosecution 

against the defendant; the dismissal order itself stands as no 

barrier. As the dissent in the Court of Appeals here aptly stated, 

“The state is barred from bringing the case [against Walker] again, 

not by operation of the trial court’s order, but by operation of the 

statute of limitation.” Walker, 356 Ga. App. at 175 (McFadden, C.J., 

dissenting). We therefore disapprove of the Court of Appeals’ 

decision in Banks.

6

 

6 As noted above, in Banks, the trial court entered orders dismissing 

numerous misdemeanor accusations “for want of prosecution” based on the 

State’s failure to comply with the requirements of the Criminal Procedure 

Discovery Act. Banks, 348 Ga. App. at 876. We express no opinion on whether 

trial courts may dismiss criminal charges for want of prosecution based on

discovery violations.
15

It follows that the Court of Appeals erred in holding that the 

trial court’s order dismissing the charges against Walker for want of 

prosecution was an impermissible dismissal with prejudice. 

Accordingly, we reverse the Court of Appeals’ judgment.

Judgment reversed. All the Justices concur, except Colvin, J., 

disqualified.
16

 NAHMIAS, Chief Justice, concurring.

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 

 

7 There are likely no reported holdings about this issue before the 1970’s 

because the State could not appeal from such trial court dismissals until 1973, 

and defendants who requested or benefitted from such dismissals could not 

complain about those favorable decisions on appeal.
17

constrain or prohibit the practice (as the legislature would be free to 

do, because the practice is rather clearly not required by the federal 

or Georgia constitution). The practice has long been authorized in 

federal courts, first by decision, see, e.g., Ex parte Altman, 34 FSupp. 

106, 108 (S.D. Cal. 1940), and later by rule, see Fed. R. Crim. P. 48 

(b). And the courts of our sister states are divided as to the validity 

of the practice. Compare, e.g., State v. Bowring, 490 A2d 667, 668-

669 (Me. 1985) (allowing dismissal of a criminal case under Maine 

law “when the party bringing the action fails to prosecute it 

diligently”), with, e.g., State v. Johnson, 821 SW2d 609, 613 (Tex. Ct. 

Crim. App. 1991) (en banc) (holding that Texas law does not 

authorize dismissal of a criminal case for want of prosecution 

without the prosecutor’s consent).

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.