In Fiorenzo v. State, the Georgia Court of Appeals reversed the trial court’s dismissal of an indictment against the defendant for sale of a counterfeit substance, holding that the defendant may still be prosecuted since jeopardy does not attach until a jury has been impaneled and sworn.
The record showed that the defendant was indicted for sale of a counterfeit substance which he represented to be ecstasy when it was not. A pretrial hearing was held regarding the defendant’s intent to raise entrapment as an affirmative defense and his motion to reveal the identity of the informant who assisted with the investigation. At the hearing, the trial court asked whether the State’s witness was present. The prosecutor replied that their primary witness was not present, but offered to address the motions with another officer who was available to testify. The court then dismissed the case “with jeopardy” on the grounds that the State failed to prosecute. The State filed an appeal, alleging that the trial court erred in dismissing the charges with prejudice.
Citing Alden v. State, the Court of Appeals noted that a defendant “is not placed in jeopardy until…he has been arraigned, has pled, and a jury has been impaneled and sworn.” Since a jury had not yet even been impaneled, the Court held that the trial court erred in dismissing the indictment with prejudice. The Court noted that while a trial court has the power to dismiss charges for want of prosecution, such a dismissal would be without prejudice—meaning that the State would still be free to commence a subsequent prosecution against the defendant.
The Court further held that in this case, the trial court should not have dismissed the indictment at all. The Court explained that even though the State did not produce the witness in question, it offered to address the motions through the testimony of another officer. The Court held that the trial court erred in dismissing the case before hearing from the other officer and deciding whether the alternative witness would be able to address the issues raised in the defendant’s motions.
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