Hodges, Judge. After the State’s witness failed to appear at a bench trial, the trial court dismissed this misdemeanor prosecution of Sara Walker. The dismissal order did not specify whether the dismissal was with or without prejudice. The State filed the instant appeal, arguing that the dismissal order amounted to an impermissible dismissal with prejudice because the statute of limitation had expired, thus barring the State from filing another accusation. Because the trial court’s dismissal functioned as an impermissible dismissal with prejudice, we vacate the judgment below and remand the case. Walker was arrested on December 30, 2016, and ultimately charged with driving under the influence of alcohol — per se (OCGA § 40-6-391 (a) (5)), driving under the influence of alcohol — less safe (OCGA § 40-6-391 (a) (1)), reckless driving (OCGA § 40-6-390), and following too closely (OCGA § 40-6-49). The case was called for a bench trial on May 28, 2019, outside the two-year statute of limitation for misdemeanor offenses. See OCGA § 17-3-1 (e) (“Prosecution for misdemeanors shall be commenced within two years after the commission of the crime.”). At the bench trial, when Walker announced ready, the State declared that it was not ready because the arresting officer, who had been properly subpoenaed, was unavailable. Although the trial court found that the State “was given a long time to attempt to reconnect with the officer on this issue[,]” the officer could not be reached. Walker moved to dismiss the charges for want of prosecution, and on May 31, 2019, the trial court granted that motion nunc pro tunc to May 28, 2019, without stating whether the dismissal was with or without prejudice. The State then filed the instant appeal.[1] On appeal, the State contends that because the two-year statute of limitation for prosecuting misdemeanors had expired and as a result, it could not re-accuse Walker, the unspecified dismissal necessarily functioned as an impermissible dismissal with prejudice.[2] Our law is abundantly clear that criminal charges may not be dismissed with prejudice. See State v. Luttrell, 207 Ga. App. 116 (427 SE2d 95) (1993) (trial court lacks authority to enter dismissal with prejudice for want of prosecution in criminal case); State v. Cooperman, 147 Ga. App. 556, 558 (2) (249 SE2d 358) (1978) (“The Civil Practice Act ([OCGA § 9-11-41 (b)]) provides for dismissal with prejudice of [c]ivil cases, but the court knows of no statutory or case authority which permits dismissals in [c]riminal cases.”). In our recent opinion, State v. Banks, 348 Ga. App. 876, 879 (825 SE2d 399) (2019), as in this case, the trial court dismissed charges against a number of defendants for want of prosecution in an order that did not specify whether the dismissals were with or without prejudice. As to the dismissals entered in cases where the statute of limitation had indisputably run, thus barring the State from re-accusing, this Court found that those dismissals functioned as dismissals with prejudice. Id. at 880, citing State v. Grimes, 194 Ga. App. 736, 736-737 (392 SE2d 727) (1990) (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”). In the instant appeal, the State is barred from re-accusing Walker because the statute of limitation has run and the State has not sought by nolle prosequi or other means to extend that limitation period. Thus, the trial court’s unspecified dismissal necessarily functions as a dismissal with prejudice, given that there is no longer any possibility for the State to re-accuse Walker. See State v. Roca, 203 Ga. App. 267, 268 (416 SE2d 836) (1992) (unspecified dismissal for want of prosecution in criminal case did not amount to a dismissal with prejudice or acquittal where “State could reaccuse the defendant within the applicable period of limitations”). Trial courts are vested with considerable, though not unlimited, authority and discretion in the conduct of their proceedings. State v. Fiorenzo, 325 Ga. App. 666, 667 (1) (754 SE2d 634) (2014); Ezebuiro v. State, 308 Ga. App. 282, 284 (1) (707 SE2d 182) (2011). As is outlined above, a trial court has the authority to dismiss criminal accusations without prejudice, but it lacks the authority to dismiss them with prejudice. Because the trial court’s unspecified dismissal necessarily functioned as a dismissal with prejudice given that the statute of limitation barred the State from re-accusing, the trial court’s authority is neither implicated nor impinged by our decision, as the trial court had no authority to do what our law prohibits it from doing. Judgment vacated and case remanded. Reese, P. J., and Mercier, J., concur. Dillard, P. J., Gobeil, Coomer, Pipkin, and Colvin, JJ., concur fully and specially. McFadden, C. J., Barnes, P. J., and Doyle, P. J., dissent. Miller, P. J., Rickman, Brown, and Markle, JJ., concur in the judgment only of the dissent.
A20A0544. THE STATE v. WALKER.
