O.C.G.A. § 17-8-2 (2019)

Annotations

JUDICIAL DECISIONS Once indictment occurs, O.C.G.A. § 17-8-2 applies, and the defendant and victim may not settle the offense between themselves without approval of the court. Pratt v. State, 167 Ga. App. 819, 307 S.E.2d 714 (1983). Submission to jury not required when essential element of charge not provable. - There was no error when the trial judge dismissed one count of an indictment on the defendant’s motion even though there was no settlement of the case between the defendant and the prosecutor since the trial judge had the authority to keep the case from a jury after the judge determined that the state could not as a matter of law establish an essential element of the offense charged. State v. Finkelstein, 170 Ga. App. 608, 317 S.E.2d 648 (1984). What settlements require court approval. - This section required court approval of settlements only in cases which have proceeded by indictment or special presentment. Goolsby v. Bush, 53 Ga. 353 (1874); Childs v. State, 118 Ga. App. 706, 165 S.E.2d 577 (1968). Settlement independent of court for minor offenses. - There may be a settlement independent of the court in such offenses as are not punishable by fine and imprisonment or a more severe penalty, but offenses of a higher grade than these cannot be settled without the consent of both the prosecutor and the court. McDaniel v. State, 27 Ga. 197 (1859). Mere consideration for settlement will not suppress prosecution. - Nei-

ther former penal Code 1895, § 956 (see O.C.G.A. § 17-8-2) nor former Civil Code 1895, §§ 3894 and 3895 (see O.C.G.A. § 51-11-20) allow a settlement merely for a consideration to suppress a prosecution, whether the offense be a felony or a misdemeanor. Jones v. Dannenberg Co., 112 Ga. 426, 37 S.E. 729, 52 L.R.A. 271 (1900). Court may exercise court’s discretion. McDaniel v. State, 27 Ga. 197 (1859). Action for malicious prosecution may not be based on settled case. - When the defendant in a criminal prosecution settles with the prosecutor the claim which is the subject matter in issue, the prosecution, although thereby terminated, is not terminated favorably to the defendant for purposes of an action for malicious prosecution. It being essential to a right of action for a malicious prosecution by a defendant in a criminal prosecution that the prosecution must have terminated favorably to the defendant. Suit brought by the defendant in a criminal proceeding against the prosecutor to recover damages for an alleged malicious prosecution, wherein the only allegation as respects the termination of the criminal proceedings is that the plaintiff, after the defendant has instituted criminal proceedings against the defendant, made an adjustment and settled the matter at a discount with the prosecutor, and that the prosecution was never further pursued, but that warrant went dismissed by the operation of law, fails to show a termina-

tion of the criminal prosecution favorable to the plaintiff as the defendant in the criminal prosecution, and therefore fails to set out a cause of action. Smith v. Otwell, 51 Ga. App. 741, 181 S.E. 493 (1935). Cited in Statham v. State, 41 Ga. 507

(1871); Brown v. State, 44 Ga. 300 (1871); Jones v. Peterson, 117 Ga. 58, 43 S.E. 417 (1903); Sanders v. McKee, 145 Ga. 507, 89 S.E. 484 (1916); Smith v. Embry, 103 Ga. App. 375, 119 S.E.2d 45 (1961); Childers v. State, 130 Ga. App. 555, 203 S.E.2d 874 (1974).

OPINIONS OF THE ATTORNEY GENERAL Cases brought by accusation. - Criminal case brought by accusation may be settled by the district attorney by a procedure like that outlined in O.C.G.A.

§ 17-8-2, although the statute, by the statute’s terms, does not apply to cases brought by accusation. 1987 Op. Att’y Gen. No. U87-8.

RESEARCH REFERENCES Am. Jur. 2d. - 21 Am. Jur. 2d, Criminal Law, § 690 et seq. ALR. - Duty to dismiss criminal proceedings on motion of attorney general or prosecuting attorney, pursuant to promise of immunity, 66 A.L.R. 1378. Construction and effect of statute authorizing dismissal of criminal action

upon settlement of civil liability growing out of act charged, 42 A.L.R.3d 315. Admissibility of defense communications made in connection with plea bargaining, 59 A.L.R.3d 441. Propriety of sentencing justice’s consideration of defendant’s failure or refusal to accept plea bargain, 100 A.L.R.3d 834.