                               THIRD DIVISION
                              ELLINGTON, P. J.,
                         DILLARD and MCFADDEN, 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/


                                                                       July 13, 2015




In the Court of Appeals of Georgia
 A15A0495. THE STATE v. OZMENT.

      MCFADDEN, Judge.

      The state appeals from the trial court’s order dismissing three counts of an

accusation after the court had accepted the defendant’s guilty plea to another count

of the accusation. Because the trial court erred in dismissing the counts of the

accusation, we reverse the order of dismissal. However, we reject the state’s further

request that we vacate the sentence imposed for the count to which the defendant pled

guilty because the state has failed to carry its burden of showing that the sentence was

improper.

      In a four-count accusation, the state charged Gregory Ozment with driving

under the influence of alcohol with a blood alcohol concentration of .08 grams or

more (DUI per se), driving under the influence of alcohol to the extent that he was a
less safe driver (DUI less safe), possessing an open container of alcohol while

operating a motor vehicle, and failing to maintain a lane while operating a motor

vehicle. Ozment rejected the state’s plea offer and proceeded to enter a non-

negotiated guilty plea to only the second count of the accusation charging him with

DUI less safe. At the plea hearing, Ozment requested that the trial court dismiss the

other counts of the accusation. The state objected, noting that the dismissal of any

counts should be part of a negotiated plea agreement. The trial judge overruled the

objection, accepted Ozment’s plea and dismissed the remaining counts, stating, “I’ve

just negotiated it. Thank you for your objection. I will go ahead and I will accept the

plea. I will go ahead and dismiss Count One, Count Three and Count Four.” The trial

court sentenced Ozment to 12 months of probation and entered a final disposition

dismissing the other three counts of the accusation. This appeal followed.

      1. Jurisdiction.

       As an initial matter, we note that OCGA § 5-7-1 (a) (1) provides that the state

may take an appeal from a trial court “order, decision, or judgment setting aside or

dismissing any indictment, accusation . . . or any count thereof.” Accordingly, the

state’s direct appeal from the trial court’s ruling dismissing counts of the accusation



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is properly before us. See State v. Henderson, 283 Ga. App. 111, 111-112 (1) (640

SE2d 686) (2006).

      2. Dismissal of the accusation counts.

      The state asserts that the trial court erred in dismissing the three counts of the

accusation to which Ozment did not enter a guilty plea. We agree.

             In the district attorney’s role as an administrator of justice, he or
      she has broad discretion in making decisions prior to trial about whom
      to prosecute, what charges to bring, and which sentence to seek. The
      state has both the duty and the right to protect the security of its citizens
      by prosecuting crime. Because the purpose of criminal law is to serve
      the public functions of deterrence, rehabilitation and retribution, it is the
      state, not the victim, that has an interest in criminal prosecutions.

State v. Perry, 261 Ga. App. 886, 887 (583 SE2d 909) (2003) (citations and

punctuation omitted).

      A trial court’s power to control the proceedings before it includes the authority

to dismiss criminal charges on its own in limited circumstances, such as when there

is a defect on the face of an indictment or for want of prosecution. State v. Fiorenzo,

325 Ga. App. 666. 667 (1) (754 SE2d 634) (2014); State v. Bachan, 321 Ga. App.

712, 714 (742 SE2d 526) (2013). However, a trial judge’s “power to control the

proceeding of the court is subject to the proviso that in so doing a judge does not take

away or abridge any right of a party under the law. [Cit.]” Fiorenzo, supra. A trial

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court abridges such a right of a party and “abuses its discretion when it interferes with

the [s]tate’s right to prosecute by dismissing an accusation without a legal basis to do

so. [Cit.]” State v. Brooks, 301 Ga. App. 355, 359 (687 SE2d 631) (2009). See also

Bachan, supra (trial court interferes with state’s right to prosecute when it dismisses

criminal charge without a legal basis).

      In this case, the trial court offered no legal basis for dismissing the counts of

the accusation over the state’s objection. Rather, the only reason articulated by the

trial court was that it had “just negotiated it” as part of Ozment’s guilty plea. This

rationale not only provided no legal basis for the dismissals, but violated the legal

prohibition against judicial participation in the plea negotiation process. See

McDaniel v. State, 271 Ga. 552, 553 (2) (522 SE2d 648) (1999). “By dismissing the

[three counts of the accusation] over the [s]tate’s objection, the trial court deprived

the [s]tate of its right to present its case against [Ozment], and thus abused its

discretion. [Cit.]” Perry, supra at 888. Accordingly, “the trial court’s dismissal of the

accusation [counts] was in error and [we] remand the case back to the trial court for

consideration under [those still pending counts of the] accusation.” Fiorenzo, supra

at 668 (2) (citation omitted).

      2. Sentence.

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      The state claims that the trial court erred in failing to sentence Ozment to at

least 72 hours of incarceration for his guilty plea to the DUI less safe count of the

accusation because it was his second DUI offense within five years and that minimum

term of incarceration is mandated by OCGA § 40-6-391 (c) (2) (B) for such a second

offense.1 However, the state did not raise this matter in the trial court, did not request

that the court impose such a sentence, and presented no evidence at sentencing that

this was Ozment’s second DUI offense within five years.

      On appeal, the state refers to two parts of the record to support its assertion that

this was Ozment’s second DUI offense within five years. First, at the sentencing

hearing, Ozment’s attorney responded to a probation officer that this was Ozment’s

“second” offense. However, no further details about the first offense were offered,

there was no explanation as to the type or date of the prior offense, and no

documentation of the prior offense was entered into evidence. Thus, this statement

by counsel, while indicating some prior offense, fails to prove that the prior offense

was a DUI mandating incarceration under OCGA § 40-6-391 (c) (2) (B).

      1
        Although this code section previously required a minimum 72-hour term of
incarceration for a second DUI offense within a five-year period, Pierce v. State, 278
Ga. App. 162, 165, n. 1 (628 SE2d 235) (2006), we note that the current version
mandates such a minimum term of incarceration for a second DUI within a ten-year
period.

                                            5
      The state also cites to a page of the record that appears to be a copy of

Ozment’s driver’s license history indicating a prior DUI offense. But this document

was not entered into evidence at the sentencing hearing, presumably because the state

made no attempt to show that Ozment had a prior DUI offense for sentencing

purposes, and certainly no foundation was laid authenticating the admissibility of the

document. Without more, this page of the record does not rise to the level of

competent evidence that undermines the presumption that the sentence imposed by

the trial court was correct. See generally State v. Crossen, 328 Ga. App. 198, 202

(761 SE2d 596) (2014) (state presented absolutely no evidence about existence of

certain statutory factors affecting sentence imposed).

       “It is well-established that there is a presumption that a sentence was correctly

imposed, and the burden of showing that a sentence was not correctly imposed is with

the party who asserts its impropriety.” Staib v. State, 309 Ga. App. 785, 795 (5) (a)

(711 SE2d 362) (2011) (citation and punctuation omitted.) Under the circumstances

of the instant case, the state has not met this burden and “has failed to overcome the

presumption that the trial court properly imposed punishment upon the defendant.”

State v. Freeman, 198 Ga. App. 553, 557 (3) (402 SE2d 529) (1991).



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      Judgment reversed in part and case remanded with direction. Ellington, P. J.,

and Dillard, J., concur.




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