Summary
affirming dismissal of accusation where "the State may file another accusation against appellee prior to the expiration of the period of limitation and prosecute him on that accusation"
Summary of this case from State v. WalkerOpinion
A89A1988.
DECIDED MARCH 6, 1990.
Criminal trespass. Fulton State Court. Before Judge Lambros.
James L. Webb, Solicitor, Lee O'Brien, Ural D. Glanville, Helen A. Roan, Assistant Solicitors, for appellant.
Leon Grimes, pro se.
The State brings this appeal pursuant to OCGA § 5-7-1 (1) from the trial court's dismissal of the misdemeanor criminal trespass charge filed against appellee. We affirm.
According to the trial court's order, "[o]n March 15, 1989, Defendant was arraigned on the charge of criminal trespass. On April 18, 1989, the case was called for trial. The Court granted the State's motion for continuance and the State was placed `on terms.' The case was reset for trial on June 1, 1989, and the State was not ready so the Court dismissed the charges against the Defendant."
A trial court is authorized to dismiss accusations and indictments. See OCGA § 5-7-1 (1). Citing State v. Cooperman, 147 Ga. App. 556 ( 249 S.E.2d 358) (1978), the State maintains that the trial court had no authority to dismiss the charge against appellee before issue was joined and evidence heard. In Cooperman, however, the trial court entered judgments of acquittal before issue was joined, in effect dismissing the accusations with prejudice. See also special concurrence in State v. Owens, 189 Ga. App. 308 ( 375 S.E.2d 656) (1988). In the case at bar, the dismissal did not amount to a dismissal with prejudice. Therefore, the State may file another accusation against appellee prior to the expiration of the period of limitation and prosecute him on that accusation. See Callahan v. State, 179 Ga. App. 556 (1) ( 347 S.E.2d 269) (1986). The trial court has a right to keep its calendar and determine the order in which cases are tried. OCGA § 17-8-1; State v. Jessup, 187 Ga. App. 429 ( 370 S.E.2d 489) (1988) (physical precedent only). The State cannot deny the trial court its right by not being prepared when the case is called and, so long as the dismissal does not amount to an acquittal, or a dismissal with prejudice, there is no error.
Judgment affirmed. Deen, P. J., and Birdsong, J., concur.