Court of Appeals of the State of Georgia ATLANTA,____________________ February 05, 2024 The Court of Appeals hereby passes the following order: A24E0043. BOSWELL v. THE STATE.

Christopher Boswell seeks emergency relief under Court of Appeals Rule 40 (b) to stay his retrial pending his appeal of the trial court’s order denying his plea in bar.

In that written order, the trial court found that the plea in bar was frivolous and filed for dilatory purposes. Consequently, the trial court retained jurisdiction to retry, convict, and sentence Boswell despite the pendency of his appeal. Harvey v. State, 296 Ga. 823, 829 (1) n. 2 (720 SE2d 840) (2015).

This court has the power to stay such proceedings to prevent the harm of retrial should a defendant’s double jeopardy claim later be held to have merit. See Harvey, 296 Ga. at 837 (3). But we are not required to issue a stay just because Boswell has asked for one. We must also consider the importance that a trial court have the power to prevent intentional dilatory tactics. See United States v. Dunbar, 611 F2d 985, 988 (5th Cir. 1980). See also Harvey, 296 Ga. at 836 (3) (Georgia courts have adopted Dunbar’s rationale). And we must exercise sparingly our power to grant emergency relief under Rule 40 (b).

Having reviewed Boswell’s motion and the trial court’s order, and with these principles in mind, we conclude that Boswell has not shown that emergency relief is necessary. We hereby DENY the emergency motion for a stay.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 02/05/2024 I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia.

Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.