concurring specially and in judgment only.
I agree with the analysis contained in Division 1 of the opinion that the State completely failed to abide by its clear and plain statutory duty under OCGA § 17-5-56 (a) to maintain all physical evidence containing biological material that was collected at the time of the crime. Specifically, the State violated the statute in this case by failing to maintain the car, from which it obtained the DNA and indeed from which it obtained all physical evidence (including photographs) it intended to use to prosecute Mussman for homicide by vehicle. Because the Georgia legislature has seen fit to impose this unequivocal duty on the State, and because the State wholly failed to comply with this duty, I believe that, as a matter of Georgia law, all evidence obtained from this car should be excluded from trial, especially in light of Mussman’s defense which relies in key part on the exculpatory evidence this car could have given.
Therefore, I have difficulties with the holding in Division 2 that the statute alone does not require this exclusion. Nothing in the statute limits its mandate or effect to post-conviction remedies, and I believe the majority’s reference to statutes in different titles of the *819Code that pertain to post-conviction proceedings as limiting the plain language of OCGA § 17-5-56 (a) to post-conviction remedies is incorrect.
Decided July 6, 2010 Peters, Rubin & Sheffield, Douglas N. Peters, M. Paul Reynolds, for appellant. Daniel J. Porter, District Attorney, William C. Akins, Assistant District Attorney, for appellee. J. Scott Key, Koehler & Riddick, Christine A Koehler, Hogue & Hogue, Laura D. Hogue, amici curiae.Accordingly, I also do not concur in Division 3 that makes the factual finding that the State acted in bad faith in releasing the car. Under a proper interpretation of OCGA § 17-5-56 (a), Division 3 is dicta only. See Brooks u. State3 (“after an issue is resolved in an appellate opinion, subsequent analysis on another theory amounts to an advisory opinion or mere dicta”) (punctuation omitted). Moreover, Division 3 finds as a matter of law that the State acted in bad faith, which finding is directly contradictory to the finding of the trial court which heard the evidence and judged the witnesses’ credibility firsthand. See Tate v. State4 (“[t]he trier of fact is not obligated to believe a witness even if the testimony is uncontradicted and may accept or reject any portion of the testimony”). Here, the trial court could well have rejected the defendant’s evidence as incredible and have believed instead that the State did not arrest Mussman until it received the crime lab report on the biological material it collected from the car. It is for the finder of fact, not an appellate court, to determine facts.
For these reasons, I concur in Division 1 and concur in judgment only in Divisions 2 and 3.
Brooks v. State, 284 Ga. App. 762, 764, n. 9 (644 SE2d 891) (2007).
Tate v. State, 264 Ga. 53, 56 (3) (440 SE2d 646) (1994).