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WHAT HAPPENS WHEN THE VICTIM IN A DOMESTIC VIOLENCE CASE DOESN'T WANT TO PROSECUTE?

Posted by Ben Sessions | Sep 09, 2015 | 0 Comments

One of the most common questions I am asked is: what happens to my domestic violence case or charge if the victim does not want to prosecute? As most people pretty quickly realize, the choice of whether a domestic violence case is dismissed does not rest with the victim. Instead, the decision about whether a domestic violence case is dismissed rests with the prosecutor. State v. Santiago, No. A15A1283, 2015 WL 4997743, at *1 (Ga. Ct. App. Aug. 24, 2015), illustrates this point. In Santiago, it was not so much the victim that wanted the case dismissed. Instead, it was the Judge that ultimately dismissed the case. From the dismissal, the State filed an appeal.

The record shows that Santiago was indicted for false imprisonment (OCGA § 16–5–41(a)) and family violence battery (OCGA § 16–5–23.1(f)) for gagging his wife, binding her wrists together, and beating her with a cord. Pursuant to a plea agreement, Santiago pled guilty to false imprisonment in exchange for the State's dismissal of the battery count. At the guilty plea hearing, the trial court found that Santiago's plea was freely, voluntarily, and knowingly made, and it accepted Santiago's plea. As agreed to by the parties, the State recommended a total sentence of 10 years to be served on probation.During the sentencing phase of the hearing, the trial court questioned Santiago and his wife, and discovered that Santiago beat his wife after learning that she was having an affair. Shortly after the incident, the couple reconciled, and they were together at the time of the plea hearing. The trial court asked the State's prosecutor whether the State still wanted to prosecute the case, and the prosecutor responded in the affirmative. The court then asked Santiago and his wife whether they “get in bed together and get it on?” When they responded that they did, the trial court stated that “[t]his is beginning to get a little ridiculous,” and asked Santiago, “Would this conviction be something that you think she would be holding over your head to make you do what she says?” Santiago responded, “Yes.” Defense counsel then asked the trial court to consider misdemeanor treatment, and the prosecutor objected. The trial court then sua sponte dismissed the case without elaboration.

State v. Santiago, No. A15A1283, 2015 WL 4997743, at *1 (Ga. Ct. App. Aug. 24, 2015)

The [S]tate 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 [S]tate, not the victim, that has an interest in criminal prosecutions.(Citations and punctuation omitted.) Ambles v. State, 259 Ga. 406, 406–407(1), 383 S.E.2d 555 (1989).

ONE THING MADE READILY APPARENT BY SANTIAGO IS THAT THE TRIAL COURT DOES NOT HAVE THE AUTHORITY TO DISMISS A DOMESTIC VIOLENCE RELATED OFFENSE ON THE BASIS THAT THE VICTIM DOES NOT WISH TO PROSECUTE

While the trial judge has the duty and power to control the proceedings of the court, that power 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.” (Citation omitted.) State v. Brooks, 301 Ga.App. 355, 359, 687 S.E.2d 631 (2009). “Our adversary system of criminal justice demands that the respective roles of the prosecution and defense and the neutral role of the court be kept separate and distinct in a criminal trial.” Bass v. State, 285 Ga. 89, 91, 674 S.E.2d 255 (2009). Thus, while a trial judge has broad discretion to control court proceedings, the judge should not usurp the role of either the prosecutor or the defendant's counsel.

Here, it was the prosecutor's decision whether to prosecute the case in light of evidence that Santiago and his wife had reconciled. While the trial court may have disagreed with that decision, the record reveals no legal basis for the trial court to take away the State's right to prosecute Santiago. Not only do we find a lack of legal basis for dismissing the case, we consider the trial court's questions to Santiago and his wife about her adultery, their sex life, and whether she would hold a conviction over his head highly inappropriate and irrelevant. By dismissing the case without any legal basis and over the State's objection, the trial court impermissibly abridged the State's right to prosecute Santiago. See, e.g., Brooks, supra, 301 Ga.App. at 359–360, 687 S.E.2d 631; State v. Perry, 261 Ga.App. 886, 887, 583 S.E.2d 909 (2003). Accordingly, we reverse.

State v. Santiago, No. A15A1283, 2015 WL 4997743, at *1-2 (Ga. Ct. App. Aug. 24, 2015)

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About the Author

Ben Sessions

I work to provide exceptional service, attention, and results to each of my clients. Most of clients come to me because they are in a completely overwhelming situation. They need someone that will do more than address their legal problems.

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