concurring specially.
I agree with the majority that the judgment below should be reversed, but for a different reason. The record reflects that the trial court’s order of dismissal was, in fact, predicated on its prior, January 26, 1987, order announced in open court. The parties and the trial court all agree that order, announced after the State had failed to announce “ready” for trial for the second time, provided that should the State fail to proceed to trial the next time the case was called, the charges would be dismissed. However, the terms of the order actually prepared by appellee and signed by the trial court, also provided that in such eventuality, “[defendant shall be found not guilty of the charges pending against him.”
I agree with the State’s contention that such an order was unauthorized because “[i]t appears that the trial judge, by entering [the' January order stating that should the case not proceed to trial appellee would be adjudicated ‘not guilty’], was in effect dismissing the [accusation] with prejudice. The Civil Practice Act ([OCGA § 9-11-41 (b)]) provides for dismissals with prejudice of civil cases, but the court knows of no statutory or case authority which permits such dismissals in criminal cases.” State v. Cooperman, 147 Ga. App. 556, 558 (2) (249 SE2d 358) (1978). “A trial judge has no authority to terminate the state’s right to prosecute by erroneously attaching the label of ‘acquittal’ to his ruling [regarding dismissal].” Id. at 558 (4).
I am authorized to state that Presiding Judge Deen joins in this special concurrence.