State v. Luttrell

Full title: THE STATE v. LUTTRELL

Court: Court of Appeals of Georgia

Date published: Jan 15, 1993

207 Ga. App. 116 (Ga. Ct. App. 1993)

427 S.E.2d 95

Opinion

A92A1858.

DECIDED JANUARY 15, 1993.

Motion to dismiss. Fulton State Court. Before Judge Vaughn.

James L. Webb, Solicitor, Lawrence W. Daniel, Helen A. Roan, Assistant Solicitors, for appellant. Chinedum T. Nwosu, for appellee.

JOHNSON, Judge.

Joanna Mae Luttrell was charged by accusation with criminal trespass. The case was scheduled for trial before a judge sitting without a jury. When the State's witnesses failed to appear for trial, Luttrell made a motion to dismiss the charge for want of prosecution. The trial court granted the motion and entered an order dismissing the charge with prejudice for want of prosecution. The State appeals from the order, arguing that the court had no authority to dismiss the charge with prejudice.

The instant case, unlike State v. Fly, 193 Ga. App. 190 ( 387 S.E.2d 347) (1989), does not involve an improper appeal by the State from a judgment of acquittal. Instead, the State has appealed from an order of dismissal for want of prosecution. "The Civil Practice Act ([OCGA § 9-11-41 (b)]) provides for dismissals with prejudice of civil cases, but the court knows of no statutory or case authority which permits such dismissals in criminal cases." (Emphasis in original.) State v. Cooperman, 147 Ga. App. 556, 558 (2) ( 249 S.E.2d 358) (1978). See also special concurrence in State v. Owens, 189 Ga. App. 308 ( 375 S.E.2d 656) (1988). As the trial court had no authority to dismiss the accusation with prejudice, the dismissal cannot be upheld.

Judgment reversed. Pope, C. J., and Carley, P. J., concur.

JOHNSON, Judge.

DECIDED JANUARY 15, 1993.