                            SECOND DIVISION
                              MILLER, P. J.,
                         BRANCH AND MERCIER, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                  February 12, 2016




In the Court of Appeals of Georgia
 A15A1667. THE STATE v. MILLER.
 A15A1668. THE STATE v. EVANS.
 A15A1748. THE STATE v. BROUGHTON.

      BRANCH, Judge.

      On March 13, 2015, Michael Miller, Eric Evans and Nathaniel Broughton

appeared for hearings as to whether their probations should be revoked in light of

their involvement in new crimes. When the State failed to produce victims or

witnesses of each of the new crimes, the trial court dismissed all three of the new

indictments “for want of prosecution.” The State has appealed all three dismissals on

the ground that the trial court interfered with the State’s right to prosecute when it

dismissed the new indictments during the probation revocation hearings. We agree

and reverse.
      The records show that Miller was indicted for burglary and tools possession on

September 12, 2014; that Evans was indicted for aggravated assault, robbery, battery

and child cruelty on October 21, 2014; and that Broughton was indicted for

aggravated assault and firearms charges on December 5, 2014. On February 24, 2015,

all three of these criminal matters were called as part of a probation revocation

calendar set and noticed for that day. When each probation revocation matter was

called, the trial court dismissed each of the new indictments “for want of

prosecution,” noting that the State could not get the “witnesses to court” in Miller’s

case and the “victim[s] to court” in Evans’s and Broughton’s cases. None of the trial

court’s three orders dismissing the indictments noted whether the dismissals were

with or without prejudice, and no transcript of proceedings was taken. These appeals

followed.

      On appeal, the State argues that the trial court erred when it dismissed the three

cases-in-chief because the dismissals lacked a legal basis and thus interfered with the

State’s right to prosecute criminal cases.1 We agree.




      1
        None of the three appellees has filed a brief opposing the arguments raised
in the State’s initial brief.

                                          2
      A trial court is authorized to dismiss accusations and indictments. See OCGA

§ 5-7-1 (a) (1) (authorizing an appeal “[f]rom an order, decision, or judgment setting

aside or dismissing any indictment, accusation, or a petition alleging that a child has

committed a delinquent act, or any count thereof”). Specifically, a trial court’s power

to control the proceedings before it “entails the discretion to dismiss criminal charges

without prejudice for want of prosection.” State v. Brooks, 301 Ga. App. 355, 359

(687 SE2d 631) (2009) (citation omitted). But a trial court “abuses its discretion when

it interferes with the State’s right to prosecute by dismissing an accusation without

a legal basis to do so.” Brooks, 301 Ga. App. at 359.

      A trial court generally lacks the authority to dismiss accusations with prejudice,

except when a prosecutor would violate a defendant’s rights by continuing a

prosecution. Brooks, 301 Ga. App. at 359; State v. Luttrell, 207 Ga. App. 116 (427

SE2d 95) (1993) (reversing dismissal of accusation with prejudice due to want of

prosecution, noting the lack of any “statutory or case authority which permits such

dismissals in criminal cases”) (citations omitted; emphasis in original); see also State

v. Blackwell, 245 Ga. App. 135, 137 (537 SE2d 457) (2000) (affirming dismissal of

drug possession charges when the State had violated defendant’s due process rights

and acted in bad faith by destroying a potentially exculpatory urine sample before

                                           3
defendant had been given an opportunity to conduct an independent test of it). There

is no evidence in the record that would support a finding that the defendants suffered

a violation of any of their rights, including due process.

      A trial court has the discretion, however, to dismiss criminal cases without

prejudice as long as the record provides a legal basis for the dismissal, such as a want

of prosecution. Brooks, 301 Ga. App. at 360. In Brooks, we reversed a dismissal of

disorderly conduct charges arising from a school fight as an abuse of discretion when

“[t]he record showed no want of prosecution.” Id.2 Likewise, in State v. Perry, 261

Ga. App. 886 (583 SE2d 909) (2003), another school fight case, we held that a trial

court abused its discretion in dismissing criminal charges, even when the school

system asked that they be dropped, because such a request did not provide a sufficient

legal basis for dismissal. Id. at 887-888. In this case, the State never agreed to leave

the disposition of these charges to the trial court’s discretion. We also note the lack

of any authority for the proposition that a trial court, where there is no due process

violation, is authorized to dismiss criminal charges without prejudice due to the


      2
       By contrast, the prosecutor in State v. Aldridge, 259 Ga. App. 673, 673 (577
SE2d 863) (2003) “agreed to leave the decision as to the final disposition” of the
charges, including driving on a suspended license, to that trial court, which dismissed
them without prejudice.

                                           4
unavailability of evidence. Brooks, 301 Ga. App. at 360. In short, there was no legal

basis for the trial court to dismiss the indictments without prejudice.

      As a final point, this trial court dismissed the three indictments at issue during

the probation revocation proceedings triggered by them. But “‘[a] criminal

prosecution and a probation revocation proceeding based on the same occurrence

actually have nothing to do with each other.’” Teague v. State, 169 Ga. App. 285, 286

(1) (312 SE2d 818) (1983), quoting Aldridge v. State, 155 Ga. App. 916, 917 (273

SE2d 656) (1980); see also Brown v. State, 294 Ga. App. 1, 2 (1) (668 SE2d 490)

(2008). At a probation revocation proceeding, “the defendant is not in the position of

one accused by indictment, even though the probationary condition alleged to have

been violated is the commission of a crime against the State.” Johnson v. State, 214

Ga. 818, 819 (108 SE2d 313) (1959) (citations omitted). Such a proceeding “‘is not

a trial on a criminal charge, but is a hearing to [judicially determine] whether the

conduct of the defendant during the probation period has conformed to the course

outlined in the order of probation.” Id., quoting Sparks v. State, 77 Ga. App. 22, 23

(47 SE2d 678) (1948). Even if this trial court would have been justified in denying

the State’s petitions for probation revocation on the ground that it had failed to



                                          5
produce any witnesses in support of the petitions, there is no legal basis for the

dismissal of the indictments at issue in this appeal.

        For these reasons, we reverse the trial court’s dismissal of these indictments as

an unwarranted interference in the State’s right to prosecute criminal cases and an

abuse of the trial court’s discretion.

        Judgments reversed. Mercier, J., concurs. Miller, P. J., concurs in judgment

only.




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