In the Supreme Court of Georgia

Decided: October 19, 2021

S2 0G1471

. WALKER v. THE STATE

.
B OGGS , Presiding J ustice. 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 re accusing the defendant, that consequence flows from the operation of the statute of limitation and not from th e dismissal order. Accordingly, we

reverse the Court of Appeals’ judgment

. 1. The record shows that o n December 30, 2016, a Georgia State Patrol trooper arrested Sara Walker and issued citation s for2

driving under the influence of alcohol to the exten t that it was less safe for her to drive, see OCGA § 40

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- 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 S tate Court (the “trial court”) . O n 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

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- 391 (a) (5), and reckless driving, s ee OCGA § 40

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- 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

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- 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 c ourt’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 t he only response that the State received and conveyed to the court was that he was “ on leave and out of town/Georgia .” N o 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

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- 3. Walker moved to dismiss the c harges for want of prosecution, and the trial court granted the motion. Three days later, the court4

entered a written order , nunc pr o 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 pendi ng 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. S ee OCGA § 5

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- 1 (a) (1) (authorizing appeal by S tate “ [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 limita tion is an impermissible dismissal with prejudice because the State is barred from re accusing 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., concu rring fully and specially). Then

- Chief Judge McFadden wrote a dissent, which was joined by two other judges. See id. at 174

- 177 (McFadd en, C.J., dissenting). The dissent ended with a statement that four additional judges “concur in judgment only as to this dissent

. ” I d. at
177. 2 We granted Walker’s petition for certiorari , and t he case was orally argued on June 9, 2021. At oral argument, a n 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

. W e also invited the Attorney General, the Prosecuting Attorneys’ Counc il 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 prejud ice. 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. 7 09, 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 f or 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

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- 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 case s 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 of8

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)). I n State v. Grimes , 194 Ga. App. 736 (392 SE2d 727) (1990), the defendant was charged with criminal trespass. W hen 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 d ismiss accusations and indictments , and that unlike the “judgments of acquittal” in Cooperman , the order dismissing the accusation against Grime s “did not amount to a dismissal with prejudice.” Grimes , 194 Ga. App. at 736. The Court of Appeals added, “[t]h erefore, 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 w ith 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. (“Th e 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 courts10

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 court s “may dismiss criminal charges without preju dice 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 i s dismissal without prejudice”). Moreover, t he State and its amici point to no statute that purports to eliminate or limit this longstanding practice , and w e s ee 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 altern ative 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. T here 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 ar e 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 preju dice. 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 court12

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 requi red 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 dismis sals 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 defen dants prior to the expiration of the period of limitation. Id. (citing Grimes , 194 Ga. App. at 736

- 737 ). 5 A ccording 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 preju dice, 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 dism issal order as informed by the background rule against dismissal s 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 require s 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, i t is not clear how the trial court would ascertain whether some other source of authority would prevent the State fr om 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

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- 2 (excluding certain periods in determining whether statute of limitation has run), or if t wo indictments14

charging the same offense or offenses had been quashed, see OCGA § 17

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- 53.1. In addition , i f 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 failur e 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 pre judice. Accordingly, we reverse the Court of Appeals’ judgment. Judgment reversed. All the Justices concur , except Colvin, J., disqualified

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N AHMIAS , 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, a s 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 di scretion. 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 r eported 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

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constrain or prohibit the practice (as the legislature would be free to do, because the practice is rather clearly not required by th e 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 st ates 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.