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State v. Ozment

Court of Appeals of Georgia

July 13, 2015

THE STATE
v.
OZMENT

DUI. Pickens Superior Court. Before Judge Worchester-Holland, pro hac vice.

B. Alison Sosebee, District Attorney, Michael A. Ray, Assistant District Attorney, for appellant.

Floyd H. Farless, for appellee.

OPINION

Page 565

McFadden, Judge.

The state appeals fro the trial court's order dismissing three counts of an accusation after the court had accepted the defendant's guilty plea to another count of the accusation. Because the trial court erred in dismissing the counts of the accusation, we reverse the order of dismissal. However, we reject the state's further request that we vacate the sentence imposed for the count to which the defendant pled guilty because the state has failed to carry its burden of showing that the sentence was improper.

In a four-count accusation, the state charged Gregory Ozment with driving under the influence of alcohol with a blood alcohol concentration of 0.08 grams or more (DUI per se), driving under the influence of alcohol to the extent that he was a less safe driver (DUI less safe), possessing an open container of alcohol while operating a motor vehicle, and failing to maintain a lane while operating a motor vehicle. Ozment rejected the state's plea offer and proceeded to enter a nonnegotiated guilty plea to only the second count of the accusation charging him with DUI less safe. At the plea hearing, Ozment requested that the trial court dismiss the other counts of the accusation. The state objected, noting that the dismissal of any counts should be part of a negotiated plea agreement. The trial judge overruled the objection, accepted Ozment's plea and dismissed the remaining counts, stating, " I've just negotiated it. Thank you for your [333 Ga.App. 83] objection. I will go ahead and I will accept the plea. I will go ahead and dismiss Count One, Count Three and Count Four." The trial court sentenced Ozment to twelve months of probation and entered a final disposition dismissing the other three counts of the accusation. This appeal followed.

1. Jurisdiction.

As an initial matter, we note that OCGA § 5-7-1 (a) (1) provides that the state may take an appeal from a trial court " order, decision, or judgment setting aside or dismissing any indictment, accusation ... or any

Page 566

count thereof." Accordingly, the state's direct appeal from the trial court's ruling dismissing counts of the accusation is properly before us. See State v. Henderson, 283 Ga.App. 111, 111-112 (1) (640 S.E.2d 686) (2006).

2. Dismissal of the accusation counts.

The state asserts that the trial court erred in dismissing the three counts of the accusation to which Ozment did not enter a guilty plea. We agree.

In the district attorney's role as an administrator of justice, he or she has broad discretion in making decisions prior to trial about whom to prosecute, what charges to bring, and which sentence to seek. The state 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, ...

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