provided, however, that a sufficient portion of the physical evidence tested for DNA is preserved and available for testing by the accused and provided, further, that if the DNA evidence does not establish the identity of the accused, the limitation on prosecution shall be as provided in subsections (b) and (c) of this Code section.
(Code 1933, § 26-502, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1987, p. 330, § 1; Ga. L. 1996, p. 1115, § 4; Ga. L. 2002, p. 650, § 1; Ga. L. 2012, p. 899, § 4-1/HB 1176.)
Cross references.- Limitations on prosecutions before military courts for desertion, mutiny, and other offenses, § 38-2-437.
Editor's notes.- Ga. L. 1987, p. 330, § 2, not codified by the General Assembly, provided that the Act, which added the proviso at the end of subsection (c), would apply to offenses committed on or after July 1, 1987.
Ga. L. 2002, p. 650, § 2, not codified by the General Assembly, provides that this Act shall apply to crimes which occur on or after July 1, 2002.
Ga. L. 2012, p. 899, § 9-1(a)/HB 1176, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2012, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2012, shall be governed by the statute in effect at the time of such offense and shall be considered a prior conviction for the purpose of imposing a sentence that provides for a different penalty for a subsequent conviction for the same type of offense, of whatever degree or level, pursuant to this Act."
Law reviews.- For annual survey of criminal law, see 56 Mercer L. Rev. 153 (2004). For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 290 (2012). For note on the 2002 amendment of this Code section, see 19 Ga. St. U.L. Rev. 118 (2002). For article, "The Georgia Roundtable Discussion Model: Another Way to Approach Reforming Rape Laws," see 20 Ga. St. U.L. Rev. 565 (2004). For note, "Give It to Me, I'm Worth It: The Need to Amend Georgia's Record Restriction Statute to Provide Ex-Offenders with a Second Chance in the Employment Sector," see 52 Ga. L. Rev. 267 (2017).
JUDICIAL DECISIONSANALYSIS
Construction with tolling provision of O.C.G.A. § 17-3-2.2. - Trial court erred by applying O.C.G.A. § 17-3-2.2 to the RICO and theft charges against the defendants because it was necessary for the state to show that the victim was over 65 years of age, was the principal stockholder of the corporation, was the owner of the property allegedly stolen, not the corporation, to determine the date the crime became known to the victim. Harper v. State, 292 Ga. 557, 738 S.E.2d 584 (2013).
When period begins to run.
- In criminal cases, the statute of limitations runs, with certain exceptions, from the time of the crime to the time of indictment, not from time of the act to time of the trial. Cain v. State, 144 Ga. App. 249, 240 S.E.2d 750 (1977).
Prosecution against the defendant for simple battery was timely filed within two years, pursuant to O.C.G.A. § 17-3-1(d), since the accusation was filed within the time period which was deemed to be the commencement of the matter pursuant to O.C.G.A. § 16-1-3(14); the fact that the supporting affidavit was filed six days after the limitations period ran did not affect the timeliness of the action pursuant to O.C.G.A. § 17-7-71(a) because that document was for the issuance of an arrest warrant. Cochran v. State, 259 Ga. App. 130, 575 S.E.2d 901 (2003).
Trial court erred in dismissing the accusations filed against the defendants in separate cases as the evidence showed that in each case the accusation was filed against the respective defendant within the applicable two-year time period set forth in O.C.G.A. § 17-3-1(d). State v. Thompson, 261 Ga. App. 828, 584 S.E.2d 7 (2003).
Trial court did not err in denying the defendant's motion to dismiss as prosecution of the defendant for misdemeanors was not commenced outside the applicable two-year statute of limitations after the defendant had the defendant's case transferred from the county probate court to the superior court and a superior court indictment was issued for the same offenses contained in the Uniform Traffic Citation (UTC) issued to the defendant on the day of the alleged offenses; rather, the prosecution against the defendant "commenced" at the time the UTC was issued, which occurred within the statute of limitations. Bishop v. State, 261 Ga. App. 445, 582 S.E.2d 571 (2003).
Four-year statute of limitations contained in O.C.G.A. § 17-3-1(c) did not bar charges for money taken from the city by the defendant, the city's employee, more than four years before the indictment since: (1) the series of transactions constituted a single embezzlement and could be charged as a single charge in the indictment; (2) the embezzlement was not discovered until mid-July 2000; and (3) the indictment was made within four years after that discovery. Stack-Thorpe v. State, 270 Ga. App. 796, 608 S.E.2d 289 (2004).
With regard to a defendant's conviction for rape of a minor relative, the trial court did not err by denying the defendant's motion for a new trial on the ground that the applicable statute of limitations ran on the rape offenses before the defendant was charged because in applying the 1996 amendment to O.C.G.A. § 17-3-1 and the tolling provisions of O.C.G.A. § 17-3-2.1, the limitation period for the defendant's crime ran 15 years from December 13, 1995, when the crimes were first reported to authorities. Thus, because the state had until December 13, 2010, to indict the defendant, the January 7, 2008, indictment was timely and no ex post facto violation arose because the original seven-year limitation period had not expired at the time. Flournoy v. State, 299 Ga. App. 377, 682 S.E.2d 632 (2009).
Burden of proof on state.
- Burden is on the state to prove that a crime occurred within the applicable statute of limitation. Tarver v. State, 198 Ga. App. 634, 402 S.E.2d 365 (1991).
State was not required to prove the crime occurred on a date certain.
- Statute of limitation for aggravated child molestation is seven years; when the date of the alleged offenses was not stated as a material element of the offense charged, the state was not required to prove the crime occurred on a date certain, and the state's proof showing that the offenses occurred within the applicable seven-year limitation period was adequate. Tyler v. State, 266 Ga. App. 221, 596 S.E.2d 651 (2004).
Allegation and proof of exception to limitation required.
- When an exception is relied upon to prevent the bar of the statute of limitations in a criminal case, it must be alleged and proved. Moss v. State, 220 Ga. App. 150, 469 S.E.2d 325 (1996).
Prosecution not time barred when intending to prove exception.
- Defendant's argument that the trial court erred in determining that a superceding indictment served to toll the statutes of limitations as to Counts 2, 4, and 5 because the tolling language in those defectively referred back to Count 1, rather than the count in question, was meritless because the defendant was sufficiently apprised of all the essential elements of the charges when read as a whole, including the fact that the state intended to prove that the statutes of limitations for the crimes were tolled until 2005 pursuant to O.C.G.A. §§ 17-3-1(c.1) and17-3-2(2) due to the fact that the defendant's identity was unknown until that time; the superfluous language "as to count one (1)" contained in Counts 2 through 6 was not enough to confuse the defendant about the offenses or the applicable exception to the statutes of limitations, which the state intended to prove at trial. Because the state was alleging an exception to the statutes of limitations, it was not barred from proceeding against the defendant under the superceding indictment. Leftwich v. State, 299 Ga. App. 392, 682 S.E.2d 614 (2009), cert. denied, No. S09C2013, 2009 Ga. LEXIS 710 (Ga. 2009), cert. denied, 559 U.S. 1019, 130 S. Ct. 1913, 176 L. Ed. 2d 386 (2010).
Nolle prosequi to indictment.
- Because the state re-indicted the defendant within six months of the entry of the nolle prosequi pursuant to O.C.G.A. § 17-3-3, the trial court did not err in denying the defendant's plea in bar. Hicks v. State, 315 Ga. App. 779, 728 S.E.2d 294 (2012).
Second indictment did not need to allege special exception to statute of limitations.
- Trial court properly denied the defendant's motion in arrest of a judgment of conviction for burglary and theft by taking because the second indictment was filed within the six-month extension authorized by O.C.G.A. § 17-3-3 and, therefore, did not need to allege an exception to the four-year statute of limitation. Johnson v. State, 335 Ga. App. 886, 782 S.E.2d 50 (2016).
State need only prove date within period of limitations.
- Date of the offense need not be proved with preciseness, but only that the offense occurred during the period of limitations. Cain v. State, 144 Ga. App. 249, 240 S.E.2d 750 (1977).
Exact date is not material.
- Court did not err in instructing the jurors that a verdict of guilty would be authorized if the jurors found beyond a reasonable doubt that the defendant committed the offense of bribery at any time within four years immediately preceding the filing of the indictment, as it is well settled in Georgia law that evidence of guilt is not restricted to the day mentioned in the indictment, but may extend to any day previous to the finding of the bill and within the statute of limitation for the prosecution of the offense. Carpenter v. State, 167 Ga. App. 634, 307 S.E.2d 19 (1983), aff'd, 252 Ga. 79, 310 S.E.2d 912 (1984).
When the defendant was accused of committing armed robbery on or about September 15, 2001, the defendant was tried in August 2002, and the defendant testified that the robbery occurred "last fall," the evidence supported a finding that the crime was committed during the fall of 2001, which was within the seven-year statute of limitations for armed robbery pursuant to O.C.G.A. §§ 16-8-41(b) and17-3-1(b); as the exact date of the commission of the crime was not a material allegation of the indictment, the commission of the offense could be proved to have occurred any time within the limitations period. Houston v. State, 267 Ga. App. 383, 599 S.E.2d 325 (2004).
With regard to defendant's conviction for burglary, the trial court did not err in allowing evidence of an April 30, 2003, burglary based on the date range of April 18 to 22, 2003, being set forth in the indictment because the date of the burglary was not an essential element of the burglary offense charged, and defendant did not assert a defense - alibi or otherwise - making the date material. Because the burglary of April 30, 2003, was within the applicable four-year statute of limitation, the trial court did not err in allowing evidence of the date. McDaniel v. State, 289 Ga. App. 722, 658 S.E.2d 248 (2008).
Defendant's conviction for misstating a material fact to a victim in connection with the sale of a security for an indictment dated December 22, 2004, was properly proven by the state to have occurred within the four year statute of limitations period, by the state establishing that the victim invested in the stock by two checks, dated November 28 and December 13, 2001, and the victim testified that the investment was made based on conversations with the defendant during the months of October and November of 2001; as a result, the evidence was sufficient to show that the defendant's violative acts as to the sale of securities occurred within the period provided by the statute of limitations. Haupt v. State, 290 Ga. App. 616, 660 S.E.2d 383 (2008).
Dismissals with prejudice as statute of limitations expired.
- Dismissal orders due to the failure of the state to provide discovery in 10 cases were vacated because the trial court exceeded the court's authority as the defendants were accused of committing offenses between May 9, 2015 and October 27, 2015, which caused the orders to operate as a dismissal with prejudice since the state was barred from prosecuting those defendants as the statute of limitations had expired. State v. Banks, 348 Ga. App. 876, 825 S.E.2d 399 (2019).
Trial court erred in dismissing the misdemeanor prosecution of the defendant because the trial court's dismissal functioned as an impermissible dismissal with prejudice in a criminal case as the state was barred from re-accusing the defendant because the two-year statute of limitation for misdemeanor offenses had ran, and the state had not sought by nolle prosequi or other means to extend that limitation period. State v. Walker, Ga. App. , 846 S.E.2d 438 (2020).
Trial court, not jury, required to make factual findings raised in pretrial plea in bar alleging statute of limitations defense.
- Trial court erred in reserving for the jury resolution of the defendants' pleas in bar, alleging a statute of limitations defense under O.C.G.A. § 17-3-1(c) to indictments charging thefts by taking and receiving in connection with a client's property transfers, because the trial court, and not the jury, was required to make factual findings based on evidence received during a pretrial hearing on this matter. Rader v. State, 300 Ga. App. 411, 685 S.E.2d 405 (2009).
Crime committed prior to indictment.
- Unless time is an essential element of the offense charged, the time of the commission of the offense alleged in the indictment is immaterial. To sustain a conviction, there must be proof to establish that the offense occurred prior to the return of the indictment and within the statute of limitations. Reynolds v. State, 147 Ga. App. 488, 249 S.E.2d 305 (1978).
Trial court did not err in denying the defendant's motion for a directed verdict of acquittal on the ground that there was insufficient evidence that the crimes for which the defendant was charged, aggravated assault, making terroristic threats, and cruelty to children in the third degree, were committed on the date alleged in the indictment because there was sufficient evidence to support the allegations of the indictment; the exact date of the crimes was not a material allegation of the indictment because the exact date was not an essential element with respect to any of the charged offenses, and the date of the crimes proved at trial was prior to the return of the indictment and within the limitation periods for the crimes. Coats v. State, 303 Ga. App. 818, 695 S.E.2d 285 (2010), overruled on other grounds by McClure v. State, 306 Ga. 856, 834 S.E.2d 96 (2019).
Offense date demonstrable by circumstantial evidence.
- Date of the offense may be established by circumstantial evidence. Cain v. State, 144 Ga. App. 249, 240 S.E.2d 750 (1977).
Circumstantial evidence was sufficient to show that acts of cruelty committed by the defendant on the defendant's 13-year-old stepson were committed within the statute of limitation. Lee v. State, 232 Ga. App. 300, 501 S.E.2d 844 (1998).
Superseding indictment not barred.
- Timely accusation charging the defendant with misdemeanors, which was later followed by an indictment that included the misdemeanor charges and a felony charge filed more than two years after the commission of the crimes, was not barred by the statute of limitations; the indictment merely duplicated the original misdemeanor charges, and the felony indictment was within the applicable statute of limitation period of four years. Wooten v. State, 240 Ga. App. 725, 524 S.E.2d 776 (1999).
Malpractice in office.
- In an action for malpractice in office brought against a judge of recorder's court for inappropriate handling of traffic cases for purposes of O.C.G.A. § 17-3-1(d), the traffic cases became final on the date that the recorder's court entered the court's judgment of nolle prosequi or accepted a plea of guilty to a lesser offense and that result was entered by the court as the court's disposition. State v. Lester, 170 Ga. App. 471, 317 S.E.2d 295 (1984); Andrews v. State, 175 Ga. App. 22, 332 S.E.2d 299 (1985).
Prosecution for misdemeanor.
- Trial court did not err in refusing to dismiss uniform traffic citations issued within two years of the date the offenses occurred, but later amended by the state, on the ground that the statute of limitation expired; the amended accusations did not constitute the commencement of a new prosecution and there had been no final disposition of the previously filed accusations. Prindle v. State, 240 Ga. App. 461, 523 S.E.2d 44 (1999).
Prosecution for felony murder.
- Defendant's prosecution for felony murder was not barred by O.C.G.A. § 17-3-1(a) even though the statute of limitations expired regarding the underlying felony because felony murder is a form of murder for which there is no statute of limitations. State v. Jones, 274 Ga. 287, 553 S.E.2d 612 (2001).
When, in defendant's murder trial, counsel did not object to counts in the indictment as to when the statute of limitations expired, ineffective assistance of counsel was not shown because there was no prejudice as these counts were later dismissed, except those counts were allowed to serve as underlying felonies for a felony murder charge, and it was proper to allow felonies as to which the statute of limitations had expired to be used in this manner, and the evidence used to prove these felonies was admissible to prove those crimes as to which the statute of limitations had not expired. Zellars v. State, 278 Ga. 481, 604 S.E.2d 147 (2004).
Trial counsel was not ineffective for failing to demur to the fatally flawed felony murder counts in the indictment because the defendant did not demonstrate prejudice as the defendant failed to show that the state would not have simply re-indicted the defendant after dismissal of the original indictment and the state faced no imminent deadlines on the murder counts. Martin v. State, 306 Ga. 747, 833 S.E.2d 122 (2019).
Amendment filed after two-year period in subsection (d).
- When an original accusation was timely filed and valid within the meaning of O.C.G.A. § 17-7-71(c), and was subsequently amended after the two-year period of limitations set forth in O.C.G.A. § 17-3-1(d), the amendment did not negate the prior valid commencement of prosecution which occurred before the expiration of the operative statute of limitations. Freeman v. State, 194 Ga. App. 905, 392 S.E.2d 330 (1990).
Lesser included offense.
- Statute of limitations did not bar conviction on lesser included offense of voluntary manslaughter as the statute of limitations applicable in a criminal case was that which related to the offense charged in the indictment, and not to any minor offense included therein of which the accused might be found guilty. Glidewell v. State, 279 Ga. App. 114, 630 S.E.2d 621 (2006), overruled on other grounds, Reynolds v. State, 285 Ga. 70, 673 S.E.2d 854 (2009).
Application for plea in bar.
- Trial court clearly erred in denying the defendant's plea in bar as to the kidnapping, aggravated assault, and burglary charges because the original indictment was brought ten years after the offenses occurred while the statute of limitations for those offenses was seven years, four years, and four years respectively, but the trial court did not err in denying the plea in bar as to the rape charge, which had a 15-year limitations period. Lynch v. State, 346 Ga. App. 849, 815 S.E.2d 340 (2018).
Waiver.
- There was no absolute bar to the defendant's waiver of the right to protection of the statute of limitations in a plea agreement signed by the defendant and the defendant's counsel. State v. Barrett, 215 Ga. App. 401, 451 S.E.2d 82 (1994), rev'd on other grounds, 265 Ga. 489, 458 S.E.2d 620 (1995).
No ineffective assistance of counsel for failing to quash indictment based on date.
- When the evidence showed that the offenses for which a defendant was charged occurred within the alleged date range and within the governing statute of limitation set forth in the indictment, and the defendant did not show that the evidence permitted the state to allege a specific date for any of the charges, nor did the defendant show that the lack of specific dates in the indictment materially affected the defendant's ability to present a defense, there was no reasonable probability that but for the defendant's trial counsel's failure to move to quash the indictment, the outcome of the defendant's trial would have been different. Stroud v. State, 284 Ga. App. 604, 644 S.E.2d 467 (2007), cert. denied, No. S07C1137, 2007 Ga. LEXIS 506 (Ga. 2007).
No ineffective assistance of counsel for failing to quash indictment based on grand jury composition.
- Trial counsel was not ineffective for failing to move to quash the indictment or to arrest judgment because even if a timely motion to quash had been filed, the indictment likely would have been dismissed because a convicted felon served on the grand jury in violation of O.C.G.A. § 15-12-60, however, the state would have been free to obtain the identical indictment from a properly constituted grand jury. Brooks v. State, 332 Ga. App. 396, 772 S.E.2d 838 (2015), cert. denied, No. S15C1548, 2015 Ga. LEXIS 573 (Ga. 2015).
Cited in Bloodworth v. State, 128 Ga. App. 657, 197 S.E.2d 423 (1973); Pope v. State, 129 Ga. App. 209, 199 S.E.2d 368 (1973); Holloman v. State, 133 Ga. App. 275, 211 S.E.2d 312 (1974); State v. Madden, 242 Ga. 637, 250 S.E.2d 484 (1978); State v. Shepherd Constr. Co., 248 Ga. 1, 281 S.E.2d 151 (1981); Lett v. State, 164 Ga. App. 584, 298 S.E.2d 541 (1982); Andrews v. State, 175 Ga. App. 22, 332 S.E.2d 299 (1985); Peavy v. State, 179 Ga. App. 397, 346 S.E.2d 584 (1986); Keri v. State, 179 Ga. App. 664, 347 S.E.2d 236 (1986); Weaver v. State, 179 Ga. App. 641, 347 S.E.2d 295 (1986); Sanders v. State, 182 Ga. App. 581, 356 S.E.2d 537 (1987); Watkins v. Laser/Print-Atlanta, Inc., 183 Ga. App. 172, 358 S.E.2d 477 (1987); In re J.B., 183 Ga. App. 229, 358 S.E.2d 620 (1987); Duncan v. State, 193 Ga. App. 793, 389 S.E.2d 365 (1989); Martin v. State, 196 Ga. App. 145, 395 S.E.2d 391 (1990); State v. Auerswald, 198 Ga. App. 183, 401 S.E.2d 27 (1990); Barton v. State, 199 Ga. App. 363, 405 S.E.2d 92 (1991); Brantley v. State, 199 Ga. App. 623, 405 S.E.2d 533 (1991); State v. Meredith, 206 Ga. App. 562, 425 S.E.2d 681 (1992); Watkins v. State, 206 Ga. App. 701, 426 S.E.2d 238 (1992); State v. Rustin, 208 Ga. App. 431, 430 S.E.2d 765 (1993); McGarity v. State, 212 Ga. App. 17, 440 S.E.2d 695 (1994); Vadner v. Dickerson, 212 Ga. App. 255, 441 S.E.2d 527 (1994); Early v. State, 218 Ga. App. 869, 463 S.E.2d 706 (1995); Mobley v. State, 219 Ga. App. 789, 466 S.E.2d 669 (1996); Lee v. State, 224 Ga. App. 542, 481 S.E.2d 264 (1997); Hall v. State, 241 Ga. App. 454, 525 S.E.2d 759 (1999); Long v. State, 241 Ga. App. 370, 526 S.E.2d 85 (1999), overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019); Beasley v. State, 244 Ga. App. 836, 536 S.E.2d 825 (2000); Carroll v. State, 252 Ga. App. 39, 554 S.E.2d 560 (2001); Merritt v. State, 254 Ga. App. 788, 564 S.E.2d 3 (2002); McKinney v. State, 261 Ga. App. 218, 582 S.E.2d 463 (2003); James v. State, 274 Ga. App. 498, 618 S.E.2d 133 (2005); Hill v. State, 315 Ga. App. 833, 729 S.E.2d 1 (2012); Davis v. State, 323 Ga. App. 266, 746 S.E.2d 890 (2013); Bighams v. State, 296 Ga. 267, 765 S.E.2d 917 (2014); Gordon v. Caldwell, 303 Ga. 715, 814 S.E.2d 680 (2018); Jenkins v. Keown, 351 Ga. App. 428, 830 S.E.2d 498 (2019); State v. Heath, Ga. , 843 S.E.2d 801 (2020).
Limitation Period Application
Judge may charge four-year statute.
- Trial judge's charge on four-year statute of limitations pursuant to this section did not create harmful error even though the requisites for the offense had changed less than four years ago since all evidence showed the crime, if committed, was committed after those changes. Almond v. State, 128 Ga. App. 758, 197 S.E.2d 836 (1973).
Misstatement of limitation period.
- Reversal was not warranted when the trial court misstated the applicable statute of limitations for child molestation because a correct statement would not have changed the result and harm to the defendant was not established. Arnold v. State, 236 Ga. App. 380, 511 S.E.2d 219, aff'd, 271 Ga. 780, 523 S.E.2d 14 (1999).
Even though the trial court erred in charging the jury that the statute of limitations for incest is seven years, the error was harmless because the defendant's acts of incest occurred well within the applicable four-year limitation period. Wiser v. State, 242 Ga. App. 593, 530 S.E.2d 278 (2000).
Although the trial court erroneously instructed the jury on the applicable statute of limitations for rape, the error was beneficial to the defendant because the instruction held the state to a higher burden to show the state commenced prosecution within seven years, not 15 years, and, thus, the defendant's contention of error lacked merit. Pauley v. State Two Cases, 355 Ga. App. 47, 842 S.E.2d 499 (2020).
No evidence concerning DNA presented.
- Trial court did not err in granting the defendant's plea in bar because the state failed to meet the state's burden to invoke O.C.G.A. § 17-3-1(d), as the state presented no evidence whatsoever at the plea in bar hearing concerning the DNA evidence and what the evidence would have established. State v. Watson, 340 Ga. App. 678, 798 S.E.2d 295 (2017).
Seven year statute of limitations.
- When the victim was born on August 19, 1982, the evidence showed that the molestations began when the victim was five or six while the victim lived in a Gwinnett County apartment, and the mother testified that they lived in Gwinnett from 1986 to 1990, the evidence authorized the determination that the acts of molestation charged occurred in Gwinnett after July 1, 1987, and within the applicable seven years statute of limitations. Thompson v. State, 212 Ga. App. 175, 442 S.E.2d 771 (1994), overruled on other grounds by Willis v. State, 304 Ga. 686, 820 S.E.2d 640 (2018).
Under the former version of O.C.G.A. § 17-3-1, it was error to convict the defendant for acts of child molestation that allegedly occurred after the victim turned 14 years old when the indictment against the defendant was returned six months beyond the four years after the victim turned 16. However, for acts that occurred while the victim was 13, the seven-year statute of limitations period applied and the indictment was returned within that time period, so the defendant was ordered retried on charges regarding acts occurring while the victim was 13; since the exact dates of the offenses were not material allegations in the indictment, those dates could be proved as of any time within the applicable statute of limitations. Tompkins v. State, 265 Ga. App. 760, 595 S.E.2d 599 (2004).
Trial court properly granted the defendant's plea in bar on statute of limitations grounds as to the charges against the defendant for armed robbery and kidnapping with bodily injury; a seven-year statute of limitations applied to those offenses, the record showed that the defendant was indicted for them more than seven years after the alleged crimes occurred, there was no tolling of the applicable limitations period, and there was also no reason for the trial court to rule that the statute of limitations issue regarding those offenses should be submitted to the jury. Jenkins v. State, 278 Ga. 598, 604 S.E.2d 789 (2004).
Because an underage sexual abuse victim did not report molestation by the defendant until December 2001, the seven-year statute of limitations did not even begin to run until that time, pursuant to O.C.G.A. §§ 17-3-1(c) and17-3-2.1(a); further, the defendant's own statement that the defendant only knew the victim for two or three years would have been sufficient to show that the molestation took place at some point within the limitations period. Porter v. State, 270 Ga. App. 860, 608 S.E.2d 315 (2004).
Trial court's denial of defendant's motion for a directed verdict of acquittal, pursuant to O.C.G.A. § 17-9-1, on two counts of child molestation in violation of O.C.G.A. § 16-6-4, was proper because the evidence of the defendant's inappropriate sexual abuse of the victim, defendant's son, sufficiently placed the dates of the charged offenses within the seven-year limitations period of O.C.G.A. §§ 17-3-1(c) and17-3-2.1(a)(5). Allen v. State, 275 Ga. App. 826, 622 S.E.2d 54 (2005).
Trial court erred in dismissing the counts of the indictment charging the defendant with aggravated child molestation, child molestation, and statutory rape with a child under the age of 16 because the indictment sufficiently invoked the tolling provision of O.C.G.A. § 17-3-2.1; pursuant to O.C.G.A. § 17-3-1(c), the state had seven years to indict the defendant, and the defendant was indicted within seven years. State v. Godfrey, 309 Ga. App. 234, 709 S.E.2d 572 (2011).
Trial court did not err in granting the defendant's plea in bar to dismiss the counts of an indictment charging the defendant with child molestation and aggravated child molestation to a child under the age of 14 because the state failed to indict the defendant within the limitation period, O.C.G.A. § 17-3-1(c); because the state did not allege that the victim was under the age of 16, the tolling provision of O.C.G.A. § 17-3-2.1 was not invoked. State v. Godfrey, 309 Ga. App. 234, 709 S.E.2d 572 (2011).
Trial court did not abuse the court's discretion in denying the defendant's motion to dismiss an indictment charging the defendant with armed robbery, O.C.G.A. § 16-8-41, for a violation of the defendant's right to due process because the defendant failed to show that the defense was prejudiced by the six year delay between the commission of the crime and the defendant's arrest or that the state deliberately delayed the arrest to obtain a tactical advantage; the defendant was arrested and indicted for armed robbery, a noncapital felony, within the applicable seven-year statute of limitation, O.C.G.A. §§ 16-8-41(a) and17-3-1(c). Billingslea v. State, 311 Ga. App. 490, 716 S.E.2d 555 (2011).
Four year statute of limitations.
- Trial court properly granted the defendant's plea in bar concerning the burglary, aggravated assault, and firearm possession charges as the state's prosecution against the defendant on those charges was barred by the applicable four-year statute of limitations regarding those offenses since the record showed that more than seven years passed between the time the crimes occurred and the state's indictment of the defendant on those charges, and no showing was made that the applicable statute of limitations was tolled; further, since the applicable statute of limitations barred those actions, the trial court erred in finding that the statute of limitations issue should be submitted to the jury. Jenkins v. State, 278 Ga. 598, 604 S.E.2d 789 (2004).
Conviction for criminal reproduction of recorded material in violation of O.C.G.A. § 16-8-60(b) was not time-barred under O.C.G.A. § 17-3-1(c); the defendant was observed committing the crime on May 22, 2004, when illegally recorded material was found in the defendant's car, and a superseding indictment was issued on February 7, 2006. Hayward-El v. State, 284 Ga. App. 125, 643 S.E.2d 242 (2007).
Because DUI was a predicate offense set out in the indictment against the defendant only as an element of the offense of vehicular homicide, in violation of O.C.G.A. § 40-6-393(a), and not as a separate crime for which the defendant risked a separate criminal liability, a trial court did not err by denying the defendant's plea in bar because, as a felony offense, prosecution on the vehicular homicide counts were commenced within four years after the commission of the crime as required by O.C.G.A. § 17-3-1(c); the expiration of the limitations period for the driving under the influence counts did not preclude a prosecution for vehicular homicide. Leachman v. State, 286 Ga. App. 708, 649 S.E.2d 886, cert. denied, No. S07C1816, 2007 Ga. LEXIS 768 (Ga. 2007).
Defendant was properly denied a motion for a directed verdict of acquittal based on the expiration of the statute of limitations under O.C.G.A. § 17-3-1 as the charge of theft by deception was a felony rather than a misdemeanor under O.C.G.A. § 16-8-12 based on the evidence that more than $500 was taken and, thus, a four-year statute of limitations applied; the defendant should have made a special plea in bar prior to the trial. Parks v. State, 294 Ga. App. 646, 669 S.E.2d 684 (2008).
Trial court did not err in granting the defendant's plea in bar based upon the running of the statute of limitations, O.C.G.A. § 17-3-1(c), because no valid indictment was filed within four years of the date the alleged victim learned of the defendant's actions when the first indictment against the defendant alleged only one crime and did not inform the defendant of all the charges the defendant had to defend against at trial and was not specific enough to protect the defendant from multiple prosecutions; the state could not allege a single defective charge of theft by taking that could have been barred by the statute of limitation and upon the statute's dismissal inflate that single, defective one count indictment to one alleging 31-counts, and the second indictment would impermissibly broaden and substantially amend the first indictment. State v. Bair, 303 Ga. App. 183, 692 S.E.2d 806 (2010).
State must commence prosecutions for theft by taking within four years of the commission of the crimes because the four-year limitation period does not include any period in which the crimes were unknown by the state, but the knowledge of someone injured by the crime may be imputed to the state for purposes of determining if the exception to the statute applies; when the state seeks to rely on an exception to the statute, the state must allege the exception in the indictment State v. Bair, 303 Ga. App. 183, 692 S.E.2d 806 (2010).
Defendant's prosecution for the crimes of false imprisonment, O.C.G.A. § 16-5-41, and kidnapping, O.C.G.A. § 16-5-40(a), were barred by the statute of limitations, O.C.G.A. § 17-3-1, because the state did not indict the defendant on those charges until after the four-year statute of limitations ran; the state's decision to reissue the indictment to include the false imprisonment and kidnapping counts substantially amended the original charges because those offenses contained elements separate and distinct from any of the crimes charged in the original indictment. Martinez v. State, 306 Ga. App. 512, 702 S.E.2d 747 (2010).
Trial court correctly concluded that the four-year statute of limitation contained in O.C.G.A. § 17-3-1(c) was applicable and that the state failed to plead and prove that the tolling provisions of O.C.G.A. § 17-3-2.2 had been triggered. Consequently, the trial court did not err in granting defendants' plea in bar. State v. Mullins, 321 Ga. App. 671, 742 S.E.2d 490 (2013).
Defendant's convictions for theft by conversion and a RICO violation were reversed because the state failed to carry the state's burden to prove that the defendant was indicted on the counts within the applicable statutes of limitation as the evidence showed that the victims, and therefore the state, had actual knowledge of the offenses more than five years prior to the June 12, 2009 indictment, and the state produced no evidence or argument to the contrary. Jannuzzo v. State, 322 Ga. App. 760, 746 S.E.2d 238 (2013).
Four-year limitation period applied to the allegations of theft and identify fraud. State v. Green, 350 Ga. App. 238, 828 S.E.2d 635 (2019).
Indictment filed within 15 year statute of limitations.
- With regard to a defendant's conviction for forcible rape of the defendant's child during the time the child was 13 through 15 years of age, the trial court correctly concluded that the state had 15 years from the victim's 16th birthday on January 12, 1995, or until January 12, 2010, to prosecute the case; therefore, no ex post facto violation occurred since the indictment was filed on January 8, 2008. Duke v. State, 298 Ga. App. 719, 681 S.E.2d 174 (2009), cert. denied, No. S09C1866, 2010 Ga. LEXIS 31 (Ga. 2010).
Two year statute of limitations.
- Prosecution of a defendant for speeding and driving with a suspended tag was not barred by the limitations period contained in O.C.G.A. § 17-3-1(d) because the prosecution was commenced under the Uniform Traffic Citations within the two-year period following the commission of the traffic offenses. Chism v. State, 295 Ga. App. 776, 674 S.E.2d 328 (2009).
State could prosecute a count of the indictment under an amended accusation because the indictment was amended before the expiration of the two-year statute of limitation, O.C.G.A. § 17-3-1(d). Sevostiyanova v. State, 313 Ga. App. 729, 722 S.E.2d 333, cert. denied, No. S12C0968, 2012 Ga. LEXIS 612 (Ga. 2012).
Allegation of molestation of a child under 16 sufficient to invoke tolling.
- Indictment alleging the molestation of a child under the age of 16 sufficiently invoked the statute of limitation tolling provision set forth in O.C.G.A. § 17-3-2.1. Lyde v. State, 311 Ga. App. 512, 716 S.E.2d 572 (2011).
Knowledge of crimes by victims or state.
- Order dismissing certain counts was vacated as to computer theft and theft by taking because no evidence was presented that the victim or the authorities knew about those crimes since no hearing was held. State v. Green, 350 Ga. App. 238, 828 S.E.2d 635 (2019).
Victim's knowledge imputable to state.
- If the victim's knowledge of alleged sexual offenses committed by the defendant was imputable to the state, the statute of limitations was not tolled due to the victim's infancy, the victim's lack of awareness of the criminality of the defendant's alleged conduct, and/or the victim's purported fear of the defendant. Sears v. State, 182 Ga. App. 480, 356 S.E.2d 72 (1987), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).
In a prosecution of a corrections officer on charges of sodomy and contact with an inmate, the victim's knowledge was imputable to the state to start the running of the statute of limitations even though the victim was an inmate and was a party to the crimes by willingly participating in the activities. Lee v. State, 211 Ga. App. 112, 438 S.E.2d 108 (1993).
Because the victim's knowledge was imputed to the state and since the last act occurred on or before May 1985, defendant's indictment in 1993, when the victim was only 12 years old, was untimely and required reversal of the defendant's conviction. It is unlikely a victim that young would have any concept they were the victim of a crime and would at most understand that the defendant hurt them; yet through a legal fiction the courts must assume the state had knowledge of these crimes at that time. Johnston v. State, 213 Ga. App. 579, 445 S.E.2d 566 (1994).
Effect of subsequent reduction of offense.
- Because the applicable law relevant to a crime is the law as the law existed at the time the crime occurred, and the theft of $350 was a felony with a four-year statute of limitations when the theft was committed, the crime remains such a felony with that statute of limitations despite the subsequent reduction of the offense to a misdemeanor with a two-year statute of limitations. State v. Williams, 172 Ga. App. 708, 324 S.E.2d 557 (1984).
Thirteen month preindictment delay not denial of due process.
- Absent a showing of actual prejudice, a 13 month preindictment delay which caused a defendant to be unable to remember where the defendant was or what the defendant was doing on the dates of the alleged offense is insufficient to show a denial of due process. Hardwick v. State, 158 Ga. App. 154, 279 S.E.2d 253 (1981).
O.C.G.A.
§ 1-3-1(d)(3) did not apply in a criminal prosecution. - In a prosecution of a county deputy for sexual battery and false imprisonment, an indictment filed on May 30, 2014, two years after the incidents that took place on May 30, 2012, was filed a day after the expiration of the statute of limitation, O.C.G.A. § 17-3-1(e); O.C.G.A. § 1-3-1(d)(3) did not apply in a criminal prosecution. State v. Dorsey, 342 Ga. App. 188, 802 S.E.2d 61 (2017).
State failed to prove a tolling of the statute of limitation.
- When there was no showing that the crimes charged in the earlier accusation arose out of the same conduct which gave rise to the offenses alleged in the subsequent accusation, the state failed to prove the statute of limitation was tolled by an amendment to an earlier accusation. Tarver v. State, 198 Ga. App. 634, 402 S.E.2d 365 (1991).
State argued that O.C.G.A. § 17-3-1(c), the four-year statute of limitation for conspiracy to defraud the state, O.C.G.A. § 16-10-21, and conspiracy in restraint of free and open competition, O.C.G.A. § 16-10-22, was tolled under O.C.G.A. § 17-3-2(2) until the state learned of the conspiracy. The defendants' pleas in bar were properly granted as the evidence was sufficient to establish that a defendant's supervisor, a state employee, was aware of the crimes over four years before the defendants were indicted, and the supervisor's knowledge was imputed to the state. State v. Robins, 296 Ga. App. 437, 674 S.E.2d 615 (2009).
State argued that O.C.G.A. § 17-3-1, the statute of limitation for conspiracy charges, was tolled under O.C.G.A. § 17-3-2(2) until the state learned of the conspiracy after receiving an open records request. The defendants' pleas in bar were properly granted as the state had the burden to prove the date the state received the open records request, but failed to do so. State v. Robins, 296 Ga. App. 437, 674 S.E.2d 615 (2009).
DNA-identification tolling provision did not apply because it expressly provided that it applied to crimes that occurred on or after July 1, 2002, and the offenses at issue occurred in 1994. Beavers v. State, 345 Ga. App. 870, 815 S.E.2d 223 (2018).
Continuation of original prosecution.
- Trial court did not err in denying the defendant's plea in bar on the ground that the statute of limitation for the two amended counts for driving under the influence of alcohol expired because the amended accusations did not commence a new prosecution, but rather, constituted a continuation of the original prosecution. Barghi v. State, 334 Ga. App. 409, 779 S.E.2d 373 (2015), cert. denied, No. S16C0427, 2016 Ga. LEXIS 235 (Ga. 2016).
Limitations period properly tolled.
- Because the statute of limitations as to two counts of theft by receiving was tolled during the period in which the person committing the crimes was unknown, and knowledge was not imputed to the state during this time, the prosecution of those counts was not time-barred. English v. State, 288 Ga. App. 436, 654 S.E.2d 150 (2007).
As the evidence established that a defendant's employer first learned of the defendant's alleged false expense reports and improper payments to the defendant's spouse in an audit conducted less than four years before the state indicted the defendant for felony theft, O.C.G.A. § 17-3-1(c)'s four-year statute of limitations was tolled by O.C.G.A. § 17-3-2(2). The tolling period ended when the employer actually learned of the crime, not when the employeer could have discovered the crime through the exercise of reasonable diligence. State v. Campbell, 295 Ga. App. 856, 673 S.E.2d 336 (2009), cert. denied, No. S09C0965, 2009 Ga. LEXIS 380 (Ga. 2009).
Because the existence, execution, and timing of an agreement that allegedly violated the bribery statute were unknown to the state before February 2010, the statute of limitations for the bribery charge was tolled until it was discovered; and the trial court did not err by denying the defendant's plea in bar based on the expiration of the statute of limitation. Kenerly v. State, 325 Ga. App. 412, 750 S.E.2d 822 (2013).
Because the tolling exception to the statute of limitation applied to the failure to disclose a financial interest charge, and the prosecution for that charge was timely commenced after the crime was discovered, the trial court did not err by denying the defendant's plea in bar based on the expiration of the statute of limitation. Kenerly v. State, 325 Ga. App. 412, 750 S.E.2d 822 (2013).
Unknown criminal or crime tolls limitation
- Prosecution of the defendant's case was not barred by the four year statute of limitations for computer theft because even if the National Guard were actually aware that the defendant entered the defendant's own grades, with or without authorization to do so; in October 2012, the undisputed evidence showed that the National Guard did not become aware that the grades entered were false until January 2015. Countryman v. State, 355 Ga. App. 573, 845 S.E.2d 312 (2020).
Following the murder of the defendant's two-year-old child, hiding the body in the attic, and fleeing the country, the jury was authorized to find that the defendant had absconded and that the statute of limitation was tolled from February 4, 2007, until January 17, 2013 as the evidence established both dates on which the defendant left Georgia (February 4, 2007) and the date the defendant was returned by compulsory legal process (January 17, 2013). Vasquez v. State, 306 Ga. 216, 830 S.E.2d 143 (2019).
"Person unknown" tolling period extends until state has probable cause to arrest.
- Under O.C.G.A. § 17-3-2(2), the statute of limitations on the defendant's charges of burglary and possession of a knife, O.C.G.A. § 17-3-1(c), was tolled with respect to an unknown person until the state possessed sufficient evidence to authorize the lawful arrest of that person; in other words, probable cause. Remand was required for consideration of whether tolling was proper under this new interpretation of § 17-3-2(2). Riley v. State, 305 Ga. 163, 824 S.E.2d 249 (2019).
Statute of limitations issue properly submitted to jury.
- After the investigating police officer testified that they could not identify the suspect in the defendant's prosecution for rape, the trial court properly submitted a statute of limitations issue to the jury; although the defendant argued that the victim knew the defendant and that they had a consensual sexual relationship, the jury believed otherwise, as was the jury's privilege. McKeehan v. State, 274 Ga. App. 14, 616 S.E.2d 489 (2005).
Instruction on statute of limitations.
- Trial counsel was ineffective in failing to request a jury instruction on the statute of limitation with regard to the child-cruelty charge because in the indictment, the state did not allege that the statute of limitation for child cruelty was tolled based on the victim being under the age of 16; thus, such proof was inadmissible at trial. Slack v. State, 354 Ga. App. 727, 841 S.E.2d 231 (2020).
Limitation period need not be alleged in indictment; Grizzard no longer applicable.
- Because the seven-year period provided for by O.C.G.A. § 17-3-1(c) is a general statute of limitations governing a particular class of criminal cases - non-capital felonies committed against victims under 14 years of age - and not an exception to another statute of limitations, it need not be alleged in an indictment in order to be applicable to a particular prosecution. To the extent that the opinion in Grizzard v. State 258 Ga. App. 124, 572 S.E.2d 760, (2002), reaches a contrary conclusion, it is hereby disapproved. Tompkins v. State, 265 Ga. App. 760, 595 S.E.2d 599 (2004).
Date not specifically alleged in indictment.
- In a child abuse case, trial counsel was not ineffective for failing to file a special demurrer to establish the date of the crime as a material allegation of the indictment because the exact date was not a material allegation of the indictment and the evidence showed that the victim was beaten by the defendant on October 2, 2008, that the co-defendant beat the victim with belts on other occasions, and other evidence showed that the victim's scars were a year old or less, therefore, the state proved that child cruelty occurred within the statute of limitation. Moore v. State, 319 Ga. App. 766, 738 S.E.2d 348 (2013).
No extension of time.
- Georgia Court of Appeals properly concluded that O.C.G.A. § 17-3-3 did not give the state six additional months to obtain a second indictment against the appellee for felony vehicular homicide (FVH) after the state's unsuccessful attempt to appeal the dismissal of the FVH count of the first indictment as the appeal did not stay any time limit and the FVH count of the second indictment did not relate back to the date of the first indictment since only a misdemeanor was pending at that point. State v. Outen, 296 Ga. 40, 764 S.E.2d 848 (2014).
Dismissals due to failure to provide discovery.
- Trial court's dismissal without prejudice as to 16 cases dismissed due to failure of the state to provide discovery was affirmed because the statute of limitations had not expired on the date of dismissals and the state could re-accuse those defendants. State v. Banks, 348 Ga. App. 876, 825 S.E.2d 399 (2019).
Decisions Under Former Code 1933, § 27-601 After Enactment of Ga. L. 1968, p. 1249 Editor's notes.- Although former Code 1933, § 27-601, was superseded and implicitly repealed in 1968 by former Code 1933, § 26-502, both sections are similar and some cases after 1968 cite both sections or § 27-601 only. Section 27-601 was explicitly repealed by amendment of the 1981 Code. Hence, cases decided after 1968 which cite § 27-601 only or with § 26-502 are included in a separate Code section.
Period of statute of limitations.
- In criminal cases, the statute of limitations runs, subject to special circumstances, from the time of the criminal act to the time of indictment, not from the time of the act to time of the trial. Hall v. Hopper, 234 Ga. 625, 216 S.E.2d 839 (1975).
Burden on state to prove date or exception.
- Burden is upon the state to prove that a crime occurred within the statute of limitations; or, if an exception to the statute is alleged, to prove that the case properly falls within the exception. State v. Tuzman, 145 Ga. App. 481, 243 S.E.2d 675 (1978), overruled on other grounds by State v. Outen, 289 Ga. 579, 714 S.E.2d 581 (2011).
Statute starts to run when crime known.
- Key to determining when the statute of limitation begins to run is to find when the offender or offense becomes known. State v. Brannon, 154 Ga. App. 285, 267 S.E.2d 888 (1980).
Crime known by victim.
- When the offense is known to the person injured by the offense, the statute begins to run. State v. Brannon, 154 Ga. App. 285, 267 S.E.2d 888 (1980).
Crime known by prosecutor or interested party.
- Statute of limitations does not begin to run in favor of the offender until the offense is known to the prosecutor, or to someone interested in the prosecution, or to someone injured by the offense. State v. Brannon, 154 Ga. App. 285, 267 S.E.2d 888 (1980).
Procedures for hearing pleas on statute.
- Pretrial hearing on a plea in bar is an appropriate procedure for handling the plea, or statute of limitation questions may properly be submitted to the jury for resolution. State v. Tuzman, 145 Ga. App. 481, 243 S.E.2d 675 (1978), overruled on other grounds by State v. Outen, 289 Ga. 579, 714 S.E.2d 581 (2011).
Nolle prosequi to indictment.
- Fact that nolle prosequi has been entered to indictment before it has been submitted to the jury is not sufficient ground to sustain plea in bar to reindictment for same offense. Bowens v. State, 157 Ga. App. 334, 277 S.E.2d 326 (1981).
Decisions Under Former Code 1933, § 27-601 Before Enactment of Ga. L. 1968, p. 1249 Homicide indictment must allege date of death.
- Unless the common-law rules are relaxed, an indictment for homicide must allege the date of death of the victim for the reason that it must appear from the indictment that the death occurred within a year and a day from the date of the infliction of the injury. Head v. State, 68 Ga. App. 759, 24 S.E.2d 145 (1943).
Date must be within year and day of wound.
- If it does not appear that the death of the person charged to have been killed happened within a year and a day after the wound was given, the indictment will be deemed fatally defective since when death does not ensue within such time the law presumes that death proceeded from some other cause. Head v. State, 68 Ga. App. 759, 24 S.E.2d 145 (1943).
Indictment stating victim killed on date is sufficient.
- If the indictment alleges that a person was killed on a date specified, then the indictment alleges that the person died on that date. Head v. State, 68 Ga. App. 759, 24 S.E.2d 145 (1943).
Applicability of statute to receiving stolen goods.
- Indictment and guilty plea of the principal thieves is by itself a sufficient allegation that the statute of limitations is not operative in a prosecution for receiving stolen goods. Sampson v. State, 60 Ga. App. 512, 4 S.E.2d 290 (1939).
State not limited to proving one transaction in offense.
- When the accusation charges the offense generally, the state need not rest the state's case on proof of a single transaction, but may prove or attempt to prove any number of transactions of the character charged in the accusation and included within the indictment's terms. Drummond v. State, 87 Ga. App. 105, 73 S.E.2d 43 (1952).
State need not prove exact date in accusation.
- While an allegation of time is necessary to make a valid accusation, it is the general rule that proof that the crime was committed on the day alleged is not necessary. Love v. State, 70 Ga. App. 40, 27 S.E.2d 337 (1943).
State is not confined to the date alleged in the accusation in proving the crime, but may prove it as of any date within the period of limitations. Drummond v. State, 87 Ga. App. 105, 73 S.E.2d 43 (1952).
State may prove crime occurred any time within two years before indictment.
- Although an indictment charged defendant with having seduced the prosecutrix on a specific date, under such an indictment the state could prove that the act of seduction occurred at any time within two years prior to the bringing of the indictment. Martin v. State, 53 Ga. App. 213, 185 S.E. 387 (1936).
On trial of a misdemeanor, the case may be made out by proof that the accused committed the act which constitutes the offense charged at any time within two years previous to the return of the indictment. Austin v. State, 104 Ga. App. 795, 122 S.E.2d 926 (1961).
No retrial for same misdemeanor.
- When an indictment is for violation of a prohibition statute, a misdemeanor, the statute of limitations governing the case is two years, and the state is not confined to the day named in the indictment, but may prove the commission of the offense at any time within two years prior to the return of the indictment, and whether acquitted or convicted, the accused cannot be tried again for such an offense committed during the period of limitation governing the case on trial. Heard v. State, 79 Ga. App. 202, 53 S.E.2d 233 (1949).
If rape shown within seven years, charge citing unlimited time harmless.
- While the period of limitation for rape is seven years, and the judge erred in charging the jury that if the offense was otherwise proved it would be sufficient to show that it was committed at any time before return of the indictment, since the evidence showed clearly and without dispute that if the defendant was guilty at all, the offense was committed within less than seven years before return of the indictment, the error was harmless. Pylant v. State, 191 Ga. 587, 13 S.E.2d 380 (1941).
Court need not instruct on two-year limitation if indictment and evidence shows within two years.
- When indictment charges that on a date certain an offense was committed, and uncontradicted proof shows that the offense was then committed, and the date charged and proved was, mathematically, within the statute of limitations, and no other acts or dates were involved in the evidence, it was not error for the court to fail to instruct the jury that the jury must, to convict, find that the offense was committed within two years prior to the return of the indictment. Ridley v. State, 66 Ga. App. 658, 19 S.E.2d 51 (1942).
Decisions Under Former Penal Code 1910, § 30 Retrial justified if state did not prove indictment filed within statute.
- When the indictment alleged a misdemeanor, and the state failed to carry the burden of proof that the indictment was found and filed in the superior court within two years after the commission of the offense charged, the court erred in overruling the motion for a new trial. Sirmans v. State, 46 Ga. App. 784, 169 S.E. 243 (1933).
Abandonment continues if no support.
- Crime of abandonment begins and continues as long as there is a failure on the part of the parent to perform the parent's duty, and consequent dependence of the child. Lomax v. State, 44 Ga. App. 500, 162 S.E. 395 (1931).
Initial abandonment date irrelevant.
- If it appears that an absent father has for two years immediately preceding the finding of the accusation against him failed and refused to provide for his dependent child, the time when the original separation took place is entirely immaterial; the continuing dependency of the child vitalizes the offense, and the fact that the absence, and even the dependency, began more than two years prior to the accusation, affords no ground for the interposition of the statute of limitations. Lomax v. State, 44 Ga. App. 500, 162 S.E. 395 (1931).
Father's temporary return does not prevent accusation after two years.
- Abandonment is a continuing offense, at least until the defendant has once been convicted, and the statute of limitations will not relieve a father who abandoned his child and failed to supply the child's needs more than two years prior to the date of the accusation, but who before that date temporarily returned to the child and for a time performed his parental duties, but who subsequently and before the finding of the accusation again left the child and thereafter failed to supply the child's necessities. Lomax v. State, 44 Ga. App. 500, 162 S.E. 395 (1931).
Jury determination that defendant operated lottery justified.
- Jury were amply authorized to find, even though the lottery tickets bore no date, that at the time of the arrest the defendant was engaged as a banker or headquarters person in the operation and maintenance of a lottery known as the numbers game. Christian v. State, 71 Ga. App. 350, 30 S.E.2d 832 (1944).
Exception to limitation must be alleged and proved.
- In a criminal case, when an exception is relied upon to prevent the bar of the statute of limitations, the exception must be alleged and proved. Bazemore v. State, 34 Ga. App. 773, 131 S.E. 177 (1926).
OPINIONS OF THE ATTORNEY GENERAL
Uniform traffic citation is valid as an accusation without an affidavit.
- If a defendant in a traffic case charged by uniform traffic citation fails to appear for trial in a probate court, a warrant may be issued regardless of whether that citation contains an affidavit of the arresting officer. Secondly, the uniform traffic citation is valid as an accusation without an affidavit and therefore tolls the statute of limitations for the prosecution of traffic violations. 1990 Op. Att'y Gen. No. U90-2.
Prosecution of misdemeanors.
- Prosecution for a violation of deposit account fraud, O.C.G.A. § 16-9-20, is commenced within the meaning of O.C.G.A. § 17-3-1 when a citation meets the requirements contained in O.C.G.A. § 15-10-202, including the signature of the judge or clerk of the magistrate court and personal service of the citation by a law enforcement officer. 1998 Op. Att'y Gen. No. 98-1.
RESEARCH REFERENCES
Am. Jur. 2d.
- 21 Am. Jur. 2d, Criminal Law, §§ 37, 144 et seq.
ALR.
- Homicide as affected by time elapsing between wound and death, 20 A.L.R. 1006; 93 A.L.R. 1470.
Effect of pleading guilty after statute of limitations has run, 37 A.L.R. 1116.
Who are within statutes relating to embezzlement by trustees or other persons acting in "fiduciary capacity," 41 A.L.R. 474.
What amounts to concealment which will prevent running of limitation against prosecution for embezzlement, 110 A.L.R. 1000.
When criminal prosecution deemed pending within saving clause of statute, or principle which prevents application of statute to pending prosecution, 122 A.L.R. 670.
Construction and application of phrase "fleeing from justice" or similar phrase in exception to statutory limitation of time for criminal prosecution after commission of offense, 124 A.L.R. 1049.
Commencement of running of limitations against prosecution for embezzlement, 158 A.L.R. 1158.
Accessories to crimes enumerated in statute of limitations respecting prosecution for criminal offenses, as within contemplation of statute, 160 A.L.R. 395.
Limitations statute applicable to criminal contempt proceedings, 38 A.L.R.2d 1131.
Conviction of lesser offense, against which statute of limitations has run, where statute has not run against offense with which defendant is charged, 47 A.L.R.2d 887.
Effect of abolition of capital punishment on procedural rules governing crimes punishable by death - post-Furman decisions, 71 A.L.R.3d 453.
When statute of limitations begins to run against criminal prosecution for embezzlement, fraud, false pretenses, or similar crimes, 77 A.L.R.3d 689.
When statute of limitation begins to run on charge of obstructing justice or of conspiracy to do so, 77 A.L.R.3d 725.
When statute of limitations begins to run against action for conversion of property by theft, 79 A.L.R.3d 847.
Issuance or service of state-court arrest warrant, summons, citation, or other process as tolling criminal statute of limitations, 71 A.L.R.4th 554.
When is conspiracy continuing offense for purposes of statute of limitations under 18 USCS § 3282, 109 A.L.R. Fed. 616.