Written by attorney Jason W. Swindle

Dead Dockets and Nolle Prosequi Orders

Dead Dockets and Nolle Prosequi Orders

When a person is accused of violating a criminal law in the state of Georgia, there are many different ways that the case can be handled. Many cases are disposed of with some type of non-jury resolution while others will be tried in front of a jury.

While the majority of criminal cases will require the use of judges, jurors, and pleas before the court, there are two instances where the case is disposed of administratively. These are the dead docket and the nolle prosequi.

One of the duties of the superior court clerk is to maintain a dead docket. The Georgia Code provides that cases may be transferred to the dead docket at the discretion of the judge and thereafter called only at his pleasure.

The placing of a case on the dead docket postpones the prosecution indefinitely but does not constitute a dismissal or termination of the case in the defendant’s favor. The case need not be reinstated nor the defendant re-indicted before he may be tried. The defendant may be brought to trial at the pleasure of the judge or upon the demand of the accused.

However, placing a case on the dead docket cannot be used to delay the trial over the defendant’s objection, or violate the accused’s right to a speedy trial under the Sixth Amendment.

From a practical standpoint, the dead docket is typically a welcome alternative for the defendant and sometimes for victims in the case. The dead docket allows the defendant some time to show the judge and prosecutor that while he may have gotten in trouble, he can maintain the life of a law abiding citizen. This will increase the chance of a subsequent dismissal of the case and allow all parties involved to move on with their lives.

Prior to indictment, the district attorney in his sole discretion may dismiss a case. Even after indictment, with consent of the court, the district attorney may enter a nolle prosequi, or “nol pros" the case, before a jury is sworn and after an examination of the case in open court.

Unlike the situation where a case is placed on the dead docket, prosecution under the indictment terminates when a nolle prosequi has been entered. The entry of the nolle prosequi renders the charge dead. Nevertheless, entering a nolle prosequi does not prevent the return of a new indictment or the framing of another accusation for the same offense if this is done within six months from the time that the nolle prosequi was entered or within the statute of limitations for the particular offense. (2 years for most misdemeanors and 4 years for most felonies).

Also, where a court enters a nolle prosequi, the court, during the same term, may grant an order rescinding the order of nolle prosequi. However, where the nolle prosequi is entered pursuant to a plea agreement, from which the defendant subsequently withdraws, the case may be reinstated outside the term of court in which it was entered.

Most of the time, the entering of a nolle prosequi ends the case in the defendant’s favor. It is tantamount to a formal dismissal of the charges like an indictment is the formal bringing of charges.

Both the dead docket and the nolle prosequi are ways of disposing of a criminal case which lean in the defendant’s favor. A careful analysis by the defense attorney and prosecuting attorney of which mechanism to use is always important in each individual case. The important thing to understand is that when either term is being used in plea negotiations it should be seen as a positive by the person accused of the criminal offense.

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