GA Code § 17-8-3 (2021)
2021 Georgia Code|Title 17 - Criminal Procedure|Chapter 8 - Trial|Article 1 - General Provisions|§ 17-8-3. Entry of Nolle Prosequi

 After an examination of the case in open court and before it has been submitted to a jury, the prosecuting attorney may enter a nolle prosequi with the consent of the court. After the case has been submitted to a jury, a nolle prosequi shall not be entered except by the consent of the defendant. The prosecuting attorney shall notify the defendant and the defendant's attorney of record within 30 days of the entry of a nolle prosequi either personally or in writing; such written notice shall be sent by regular mail to the defendant at the defendant's last known address and to the defendant's attorney of record.   (Laws 1833, Cobb's 1851 Digest, p. 836; Code 1863, § 4535; Code 1868, § 4555; Ga. L. 1870, p. 422, § 1; Code 1873, § 4649; Ga. L. 1877, p. 108, § 1; Code 1882, § 4649; Penal Code 1895, § 957; Penal Code 1910, § 982; Code 1933, § 27-1801; Ga. L. 1989, p. 585, § 1.)   Law reviews.   - For survey article on death penalty law, see 59 Mercer L. Rev. 123 (2007).   JUDICIAL DECISIONS    Object of this section was to prevent entries of nolle prosequi by the solicitor general (now district attorney) without the sanction and approval of the judge, who presumably will not allow such entries to be made except for good reason. Examination in open court is required in order that the judge may have proper and lawful information upon which to base the judge's action. Lewis v. State, 101 Ga. 532, 28 S.E. 970 (1897).    Provisions of this section were directory and for the protection of the public. Doyal v. State, 70 Ga. 134 (1883).   Timeliness of nolle prosequi motion.    - Ga. Unif. Super. Ct. R. 31.1 did not apply to the state's motion for entry of nolle prosequi; the timeliness of an entry of nolle prosequi is governed by O.C.G.A. § 17-8-3. State v. Serio, 257 Ga. App. 369, 571 S.E.2d 168 (2002).    Trial court properly vacated the court's first nolle prosequi order entered pursuant to O.C.G.A. § 17-8-3 and substituted one entered in open court almost two years later; while a trial court could vacate an order of nolle prosequi at will only during the term of its court, and the trial court here indisputably vacated the court's order outside the term, this situation was governed by O.C.G.A. § 9-11-60, and treating the second ground of the defendant's motion as a motion to set aside under § 9-11-60(d)(2), the trial court was within the court's rights in essentially modifying the court's order under § 9-11-60(h). Montgomery v. State, 259 Ga. App. 153, 575 S.E.2d 917 (2003).   Recommendation of nol-prossed by district attorney.    - It is duty of district attorney to determine whether it is in public interest to recommend to court that case be nol-prossed. State v. Davis, 159 Ga. App. 537, 284 S.E.2d 51 (1981).   Prosecutor's discretion to dismiss.    - Prosecutor, as part of the authority of the prosecutor's office, has sole discretion to dismiss cases prior to indictment. State v. Hanson, 249 Ga. 739, 295 S.E.2d 297 (1982).    Trial court has discretion to order the entry of a nolle prosequi, instead of quashing the indictment, to avoid the application of O.C.G.A. § 17-7-53.1. Blanton v. State, 324 Ga. App. 610, 751 S.E.2d 431 (2013).   Court's discretion to follow nol-prossed recommendation.    - When recommendation is made that indictment be nol-prossed, it is within the discretion of the trial court whether to follow the recommendation. State v. Davis, 159 Ga. App. 537, 284 S.E.2d 51 (1981).    Plea bargain was not "judicially coerced" when the court agreed to accept the nolle prosequi only if the defendant's coindictee exonerated the defendant or accepted primary responsibility for the crimes charged, and declined to consent to the nolle prosequi when the state could not produce this evidence. Wilcox v. State, 236 Ga. App. 235, 511 S.E.2d 597 (1999).   Disclosure of nolle prosequi agreement to jury.    - When the jury is made aware of a nolle prosequi agreement between a codefendant and the prosecutor by the prosecutor's disclosure of the agreement, the requirements of due process were satisfied. Williams v. State, 151 Ga. App. 683, 261 S.E.2d 430 (1979).   Purpose of requirement for examination of case in open court.    - Requirement that the nolle prosequi be entered after an examination of the case in open court would appear to be for the purpose of protecting the interests of both the accused and the state by making all the proceedings conducted openly in the courtroom in the presence of anyone who legitimately may be present, rather than covertly so as to conceal or at least give the appearance of concealing the fact and the true purposes of such proceedings. Thompson v. State, 142 Ga. App. 888, 237 S.E.2d 419, rev'd on other grounds, 240 Ga. 296, 240 S.E.2d 87 (1977).    Failure to enter nolle prosequi of original indictment in open court may affect the validity of the attempted nolle prosequi, but it does not affect the validity of a new indictment. Casillas v. State, 267 Ga. 541, 480 S.E.2d 571 (1997).    De novo investigation was not required before the entry of nolle prosequi orders on an original indictment when the court conducted an examination in open court. Larochelle v. State, 219 Ga. App. 792, 466 S.E.2d 672 (1996).   Accused's consent not required prior to attachment of jeopardy.    - Nolle prosequi may be entered without the consent of the accused at any time prior to the attachment of jeopardy. McIntyre v. State, 189 Ga. App. 764, 377 S.E.2d 532 (1989).   Nolle prosequi as adjudication of guilt or innocence.    - Nolle prosequi does not adjudicate either the innocence or guilt of the accused unless the accused has been placed in jeopardy. Hunter v. State, 104 Ga. App. 576, 122 S.E.2d 172 (1961).   For case to be considered submitted, jury must be impanelled and sworn.    - Case is not submitted to the jury, within the meaning of this section, until the jury has been impanelled and sworn in the cause. Fortson v. State, 13 Ga. App. 681, 79 S.E. 746 (1913); Martin v. State, 73 Ga. App. 573, 37 S.E.2d 411, cert. denied, 329 U.S. 760, 67 S. Ct. 115, 91 L. Ed. 655 (1946).    Consent of the court is a necessity after the case has been submitted to the jury. Lascelles v. State, 90 Ga. 347, 16 S.E. 945, 35 Am. St. R. 216 (1892), aff'd, 148 U.S. 537, 13 S. Ct. 687, 37 L. Ed. 549 (1893).    Nolle prosequi cannot be entered without the consent of the trial court since such consent is conclusive upon the validity of the nolle-pros. State v. Davis, 159 Ga. App. 537, 284 S.E.2d 51 (1981).    To the extent that the state agrees to nolle prosequi certain charges, such agreement is not binding without a trial court's consent. Palmer v. State, 260 Ga. App. 670, 580 S.E.2d 539 (2003).    Court's consent is conclusive as to validity of nolle prosequi. Lascelles v. State, 90 Ga. 347, 16 S.E. 945, 35 Am. St. R. 216 (1892), aff'd, 148 U.S. 537, 13 S. Ct. 687, 37 L. Ed. 549 (1893); State v. Davis, 196 Ga. App. 785, 397 S.E.2d 58 (1990).   Rescission of approval of entry of nolle prosequi.    - State can revive a prosecution by petitioning the trial court to vacate the court's order consenting to the entry of nolle prosequi. Buice v. State, 239 Ga. App. 52, 520 S.E.2d 258 (1999), aff'd, 272 Ga. 323, 528 S.E.2d 788 (2000).    An order of nolle prosequi may be vacated within the same term of court in which the order was rendered in those instances where the state has demonstrated a meritorious reason and there is no prejudice to the accused which would constitute a manifest abuse of the trial court's discretion in vacating the order. Buice v. State, 272 Ga. 323, 528 S.E.2d 788 (2000), affirming Buice v. State, 239 Ga. App. 52, 520 S.E.2d 258 (1999).    Nolle prosequi must go on the minutes with the court's cognizance thereof. Statham v. State, 41 Ga. 507 (1871).   Consent of accused not required.    - Consent of the accused is not required if the case has not gone to the jury. Fortson v. State, 13 Ga. App. 681, 79 S.E. 746 (1913).    Consent of the accused is not required even if the case is on a rehearing after a reversal for lack of evidence to support the verdict. Lewis v. State, 101 Ga. 532, 28 S.E. 970 (1897).   Consent required when accused has been in jeopardy.    - After the accused has been in jeopardy, the accused cannot again be prosecuted for the same offense if the nolle prosequi was without the accused's consent. Doyal v. State, 70 Ga. 134 (1883).   Conclusiveness of judgment entering nolle prosequi.    - Judgment of the court allowing the entry of nolle prosequi has the same force and conclusiveness ordinarily incident to judgments, and cannot be collaterally attacked. Peeples v. Walker, 12 Ga. 353 (1852); Clark v. Black, 136 Ga. 812, 72 S.E. 251 (1911).   Nolle prosequi after mistrial doesn't result in acquittal.    - Effect of a nolle prosequi of a bill of indictment is a termination of the case pending on that bill, with all recognizances and other incidents of that particular prosecution. Lamp v. Smith, 56 Ga. 589 (1876).    Nolle prosequi has the effect of preventing an appeal for error in overruling a demurrer to an indictment. Jones v. State, 115 Ga. 814, 42 S.E. 271 (1902).    Properly granted mistrial removes the case from the jury and a nolle prosequi entered after a mistrial, even without the consent of the defendant, does not have the effect of acquittal. Rhyne v. State, 209 Ga. App. 548, 434 S.E.2d 76 (1993), aff'd, 264 Ga. 176, 442 S.E.2d 742 (1994).   Nolle prosequi as to one codefendant but not others.    - When a separate written order on a nolle prosequi is entered as to one codefendant, showing clearly that a count of the indictment was abandoned only as to that defendant, there is not a termination of the charge against the other codefendant. Williams v. State, 244 Ga. 485, 260 S.E.2d 879 (1979).    While the statute clearly establishes the authority of the prosecuting attorney and court and the right of the defendant involved, the statute gives no right to a codefendant to have a voice in the decision of whether to enter a nolle prosequi. Broomfield v. State, 264 Ga. 145, 442 S.E.2d 242 (1994).    Conclusion that the appellant has no standing to complain of the trial court's decision to consent to the entry of nolle prosequi to appellant's codefendant does not mean that the appellant cannot complain of the manner in which the situation was handled in the trial court. Broomfield v. State, 264 Ga. 145, 442 S.E.2d 242 (1994).   Reindictment after nolle prosequi.    - When a nolle prosequi is entered by the prosecuting attorney with the consent of the court, a new indictment may be found within six months from the time the first indictment is quashed or the nolle prosequi entered and its effect therefore is not necessarily the ending of the prosecution, but the continuance of the prosecution. Not until the expiration of the six-month period within which a new indictment for the same offense may be preferred, or some other act or declaration which amounts to an abandonment, is the prosecution at an end. Earlywine v. Strickland, 145 Ga. App. 626, 244 S.E.2d 118 (1978); Bowens v. State, 157 Ga. App. 334, 277 S.E.2d 326 (1981).    When a nolle prosequi has been entered to an indictment before the indictment has been submitted to the jury, this is not a sufficient ground to sustain a plea in bar to a reindictment for the same offense. Bowens v. State, 157 Ga. App. 334, 277 S.E.2d 326 (1981).    When in superior court, before a jury is impaneled and sworn, the state enters a nolle prosequi of the indictment and, subsequently, one of the charges is transferred to the county solicitor's office where it subsequently is included in an accusation before the state court, this does not result in an improper termination or constitute the basis for prosecutorial misconduct such as to bar the prosecution based on double jeopardy. Newman v. State, 166 Ga. App. 609, 305 S.E.2d 123 (1983).    Prosecutor was entitled, with the permission of the recorder's court, to enter a nolle prosequi of the charges pending there against the defendant, which rendered those charges dead, but did not prevent the prosecutor from reaccusing the defendant for the same offenses; contrary to the finding of the state court, the fact that charges against the defendant were pending in both the recorder's court and the state court for one day did not render the state's conduct "improper." State v. Serio, 257 Ga. App. 369, 571 S.E.2d 168 (2002).    Because the defendant was never tried and convicted under a first indictment, jeopardy never attached as to that indictment; therefore, any failure to follow the procedures of O.C.G.A. § 17-8-3 in filling a nolle prosequi on the first indictment did not bar the defendant's subsequent conviction under the second indictment. Montgomery v. State, 259 Ga. App. 153, 575 S.E.2d 917 (2003).    Trial court did not abuse the court's discretion by granting the nolle prosequi as to a first indictment nor did the court err in denying the defendant's plea of former jeopardy and motion to dismiss a third indictment because under O.C.G.A. § 17-8-3 the state did not need the defendant's consent to obtain an order of nolle prosequi before the case was submitted to a jury and the state had the discretion to order the nolle prosequi, instead of quashing the indictment to avoid the application of O.C.G.A. § 17-7-53.1. Blanton v. State, 324 Ga. App. 610, 751 S.E.2d 431 (2013).    Entries of nolle prosequi do not trigger the bar to prosecution in O.C.G.A. § 17-7-53.1. Blanton v. State, 324 Ga. App. 610, 751 S.E.2d 431 (2013).    Under O.C.G.A. § 17-8-3, the state does not need a defendant's consent to obtain an order of nolle prosequi before the case has been submitted to a jury and that the entry of such orders renders the motions to quash moot. Blanton v. State, 324 Ga. App. 610, 751 S.E.2d 431 (2013).   When nolle prosequi bars subsequent indictment.    - Entry of a nolle prosequi is a bar to a subsequent indictment only when entered after the case has gone to the jury and without the consent of the accused. Jones v. State, 55 Ga. 625 (1876); Doyal v. State, 70 Ga. 134 (1883); Jackson v. State, 76 Ga. 551 (1886).   Costs may not be demanded or received when case nol prossed.    - No officer has the right to demand or receive of one accused of crime costs on a criminal case which has been nol prossed. Hunter v. State, 104 Ga. App. 576, 122 S.E.2d 172 (1961).   Failure to inform jury of plea agreement when jury is informed of nolle prosequi.    - If in the prosecutor's opening statement the prosecutor informs the jury of the prosecutor's agreement to nol prosse the codefendant's indictment in exchange for that codefendant's testimony, the state's failure to inform the jury of its plea bargaining agreement with the codefendant, who testified against the appellant on behalf of the state, does not constitute reversible error. Williams v. State, 151 Ga. App. 683, 261 S.E.2d 430 (1979).   Nolle prosequi after submission to jury is error and equivalent to acquittal.    - After submission to the jury on a good indictment, a nolle prosequi without the consent of the accused is error and is equivalent to an acquittal on a plea of former jeopardy. Jones v. State, 55 Ga. 625 (1876).   Nolle prosequi on two counts after submission to jury required new trial.    - Trial court erred in allowing the state to nolle prosequi the two methamphetamine possession charges over the defendant's objection and proceed only on a trafficking charge because the case had been submitted to the jury within the meaning of O.C.G.A. § 17-8-3. Also, this procedure essentially allowed the state to amend the indictment. Truelove v. State, 302 Ga. App. 418, 691 S.E.2d 549 (2010).    Cited in Price v. Cobb, 60 Ga. App. 59, 3 S.E.2d 131 (1939); Williams v. State, 126 Ga. App. 302, 190 S.E.2d 807 (1972); In re Pending Cases, 234 Ga. 264, 215 S.E.2d 473 (1975); Williams v. Trust Co., 140 Ga. App. 49, 230 S.E.2d 45 (1976); Wood v. State, 242 Ga. 277, 248 S.E.2d 612 (1978); Albitus v. F & M Bank, 159 Ga. App. 406, 283 S.E.2d 632 (1981); Rhear v. State, 171 Ga. App. 435, 319 S.E.2d 895 (1984); Merrill v. State, 201 Ga. App. 671, 411 S.E.2d 750 (1991); Brown v. State, 322 Ga. App. 446, 745 S.E.2d 699 (2013).   OPINIONS OF THE ATTORNEY GENERAL   Discretion of court in addressing motion.   - As a general rule, a motion to nolle prosequi a state indictment can only be entered upon the court's consent. Whether to consent to the nolle prosequi is a matter addressed to the sound discretion of the court. 1988 Op. Att'y Gen. No. U88-21.   No disqualification of prosecuting attorney for denial of motion.   - Once an indictment or accusation has been filed, a district attorney's motion to nolle prosequi or dead docket requires consent of the court. If the trial court refuses to grant the district attorney's motion to nolle prosequi or dead docket the case, the district attorney is not thereby disqualified. 1988 Op. Att'y Gen. No. U88-25.   RESEARCH REFERENCES   Am. Jur. 2d.   - 21 Am. Jur. 2d, Criminal Law, § 685 et seq.   C.J.S.   - 22A C.J.S., Criminal Procedure and Rights of the Accused, § 275 et seq.   ALR.    - Power of court to enter nolle prosequi or dismiss prosecution, 69 A.L.R. 240.    Nolle prosequi or discontinuance of prosecution in one court and instituting new prosecution in another court of coordinate jurisdiction, 117 A.L.R. 423.