The period within which a prosecution must be commenced under Code Section 17-3-1 or other applicable statute does not include any period in which:
(Code 1933, § 26-503, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1969, p. 857, § 17.)
Law reviews.- For annual survey of death penalty decisions, see 57 Mercer L. Rev. 139 (2005); 58 Mercer L. Rev. 111 (2006).
JUDICIAL DECISIONSANALYSIS
General Consideration
Knowledge of victim as knowledge of state.
- If a crime against the public involves also a wrong upon an individual, such as an assault or any other crime in which an individual, who is not a party to the crime suffers, the knowledge of the victim is the knowledge of the state, even though the victim does not represent the state in an official capacity. Womack v. State, 260 Ga. 21, 389 S.E.2d 240 (1990).
Knowledge placed at issue by O.C.G.A. § 17-3-2(2) is the knowledge of the state, which knowledge includes that imputed to the state through the knowledge not only of the prosecution, but also includes the knowledge of someone interested in the prosecution, or injured by the offense. Thus, the knowledge of a victim of a crime or of a law enforcement officer is imputed to the state. Duncan v. State, 193 Ga. App. 793, 389 S.E.2d 365 (1989); Greenhill v. State, 199 Ga. App. 218, 404 S.E.2d 577, cert. denied, 199 Ga. App. 906, 404 S.E.2d 557 (1991).
When the offense is known by an injured party, the statute begins to run. If a crime against the public involves also a wrong upon an individual, who is not a party to the crime, the knowledge of the victim is imputed to the state, even though the victim does not represent the state in an official capacity. Lowman v. State, 204 Ga. App. 655, 420 S.E.2d 94 (1992).
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).
Trial court did not err in granting the plea in bar as the tolling provision found in O.C.G.A. § 17-3-2(2) did not apply given that the victim testified that the defendant told the victim the defendant's name and there was some indication that the victim had been given the defendant's telephone number and, thus, the victim's knowledge of the perpetrator was imputed to the state. State v. Watson, 340 Ga. App. 678, 798 S.E.2d 295 (2017).
Unknown criminal or crime tolls limitation.
- Pursuant to O.C.G.A. § 17-3-2(2), the limitation period governing a prosecution does not include any period in which the person committing the crime is unknown or the crime is unknown. The state bears the burden of proving that an otherwise time-barred allegation falls within an exception to the statute of limitation. State v. Green, 350 Ga. App. 238, 828 S.E.2d 635 (2019).
Escape and concealment before indictment tolls statute.
- If after the commission of the crime the offender is arrested, and then escapes and conceals oneself before indictment and avoids arrest, such concealment still will suspend the statute of limitations. Dennard v. State, 154 Ga. App. 283, 267 S.E.2d 886 (1980).
Paragraph (2) inapplicable to acts between 1968 and November 1, 1982.
- Tolling provision of O.C.G.A. § 17-3-2(2) does not apply to any acts occurring between 1968, when the statute provided for tolling only for periods when the person committing the crime was unknown and November 1, 1982, when the provision was reenacted to include the provision that the crime be unknown, because it was not in effect during this period. Adcock v. State, 194 Ga. App. 627, 391 S.E.2d 438, aff'd, 260 Ga. 302, 392 S.E.2d 886 (1990).
O.C.G.A.
§ 17-3-2(2) requires actual knowledge. - Constructive knowledge was not sufficient; thus, the state was not charged with knowledge of the identity of an offender who committed a crime simply because it lifted a fingerprint from the crime scene as the fingerprint was not matched to the defendant until several years later. Beasley v. State, 244 Ga. App. 836, 536 S.E.2d 825 (2000).
Prosecution barred after nolle prosequi entered and not thereafter vacated.
- After the defendant's plea to various criminal charges was vacated because the defendant was found to have lacked the requisite mental capacity to have made a knowing and voluntary plea and the defendant was to be tried on those charges, it was found that the trial court lacked jurisdiction over other charges that had been nolle prossed by the state at the time of the plea entry and, accordingly, defendant could not be tried thereon; it was noted that the term of the trial court had expired, the order of nolle prosequi had not been vacated during that term, the limitations period had expired, and the state had not sought to refile those charges in a timely manner as provided for in O.C.G.A. §§ 17-3-2 and17-3-3. Carlisle v. State, 277 Ga. 99, 586 S.E.2d 240 (2003).
State had no actual knowledge of criminal wrongdoing.
- Superior court did not err in failing to grant the defendant's plea in bar, motion to dismiss, and general demurrer to prohibit prosecution of the non-murder counts in the indictment as barred by the applicable statutes of limitation because the record did not support a finding that the state had actual knowledge that there was criminal wrongdoing resulting in the fatality, much less that the defendant would be charged as the perpetrator of the victim's death, until the superseding medical examiner's report. Higgenbottom v. State, 290 Ga. 198, 719 S.E.2d 482 (2011).
Statute of limitations not tolled.
- Trial court erred by denying the defendant's plea in bar because the statute of limitation was not tolled since the heirs knew as early as March 1, 1985, that the defendant in the judicial proceeding in the probate court knowingly and wilfully made false statements material to the issue before the probate court. Both the person committing the crime and the crime were known and therefore the period of limitations was not tolled. Lowman v. State, 204 Ga. App. 655, 420 S.E.2d 94 (1992).
Trial court did not err in granting the defendant's plea in bar based on the defendant's statute of limitation argument regarding the non-murder offenses charged against the defendant as the state did not show that the applicable statutes of limitations were tolled because the state did not show that the defendant absconded from the state or hid to avoid arrest; indeed, the state admitted that the defendant was often a public resident of Georgia and that the defendant had been in jail in Georgia for part of what the state argued should have been the tolling period. Jenkins v. State, 278 Ga. 598, 604 S.E.2d 789 (2004).
Although an applicable statute of limitation was tolled in a case in which the person committing the crime was unknown, the trial court did not err in granting the defendant's plea in bar regarding the non-murder offenses charged against the defendant based on the defendant's argument that they were barred under the applicable statutes of limitations, as enough evidence existed to show that the defendant was the perpetrator of the non-murder crimes and, thus, those statutes of limitations were not tolled. Jenkins v. State, 278 Ga. 598, 604 S.E.2d 789 (2004).
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).
Statute of limitations as to the charge brought against the defendant 17 years after the crime occurred was not tolled by the "person unknown" exception in O.C.G.A. § 17-3-2(2) because the evidence unequivocally showed that the state had actual knowledge of the defendant's identity as one of two suspects almost immediately after the crime occurred and was the prime suspect. State v. Boykin, 320 Ga. App. 9, 739 S.E.2d 16 (2013).
Trial court did not err in granting the defendant's plea in bar, because the Department of Labor's system identified the defendant as having received unemployment benefits while working more than four years before the case was filed and the period was not tolled while the Department was awaiting the employer's response to its inquiry as to whether the defendant was working during the relevant time period. State v. Bragg, 332 Ga. App. 608, 774 S.E.2d 182 (2015).
Statutory period was not tolled under the person-unknown tolling provision because the defendant was identified as the primary suspect in the immediate aftermath of the attack. Beavers v. State, 345 Ga. App. 870, 815 S.E.2d 223 (2018).
"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 limitation tolled.
- Trial court did not err in denying the defendant's motion for a judgment of acquittal on the criminal charges against the defendant of concealing a death and theft by taking as the evidence showed that law enforcement officers were not aware for many months or even a couple of years that such crimes had been committed, and, thus, defendant did not show that defendant was indicted outside of the applicable statute of limitation, which only began to run at the time law enforcement officers were aware that those crimes had been committed. James v. State, 274 Ga. App. 498, 618 S.E.2d 133 (2005).
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 employer 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).
Although an indictment was not issued until fourteen years after the crimes of rape, kidnapping, and false imprisonment were committed, pursuant to O.C.G.A. § 17-3-2(2), the limitation periods for the crimes were tolled because the defendant's identity as the perpetrator was not known either to the victim or to the state until just before the indictment was issued. Scales v. State, 310 Ga. App. 48, 712 S.E.2d 555 (2011).
Since two clients did not discover the defendant's theft at the time the theft occurred, the statute of limitations was tolled until discovery and those counts were not barred by the limitations period. Pennington v. State, 323 Ga. App. 92, 746 S.E.2d 768 (2013).
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).
Limitations period properly tolled.
- State met the state's burden of proving the applicability of the tolling statute, O.C.G.A. § 17-3-2(2), because the state filed the state's indictment against the defendant less than four years after the victim had actual knowledge of the defendant's crime, insurance fraud in violation of O.C.G.A. § 17-3-1(c); the tolling period ended when an investigator obtained first-hand knowledge of the acts forming the crimes. Royal v. State, 314 Ga. App. 20, 723 S.E.2d 118 (2012), cert. denied, No. S12C1007, 2012 Ga. LEXIS 542 (Ga. 2012).
Extension of statute of limitations.
- O.C.G.A. § 17-3-3 provides an extension of the statute of limitations period and not an exception to the limitations period that must be pled in the indictment; indictment of the defendant over seven years after the commission of the crimes was proper since the charges had been nolle prossed after defendant's earlier convictions had been reversed on appeal. Sallie v. State, 276 Ga. 506, 578 S.E.2d 444, cert. denied, 540 U.S. 902, 124 S. Ct. 251, 157 L. Ed. 2d 185 (2003).
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).
Limitation not tolled during pendency of previous appeal.
- Running of the period of limitation was not tolled during the pendency of a previous appeal in the case sub judice since the pendency of an appeal is not among the exceptions provided by O.C.G.A. § 17-3-2. Duncan v. State, 193 Ga. App. 793, 389 S.E.2d 365 (1989).
Applicability to RICO prosecutions.
- Pursuant to O.C.G.A. § 16-14-8(2), the five-year statute of limitation for criminal prosecution of RICO violations was tolled up to the time the victim and the state first learned of the predicate offenses. Adams v. State, 231 Ga. App. 279, 499 S.E.2d 105 (1998).
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).
Cited in Holloman v. State, 133 Ga. App. 275, 211 S.E.2d 312 (1974); State v. Shepherd Constr. Co., 248 Ga. 1, 281 S.E.2d 151 (1981); State v. Stowe, 167 Ga. App. 65, 306 S.E.2d 663 (1983); State v. Benton, 168 Ga. App. 665, 310 S.E.2d 243 (1983); State v. Lowman, 198 Ga. App. 8, 400 S.E.2d 373 (1990); State v. Meredith, 206 Ga. App. 562, 425 S.E.2d 681 (1992); Hall v. State, 241 Ga. App. 454, 525 S.E.2d 759 (1999); 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); Tompkins v. State, 265 Ga. App. 760, 595 S.E.2d 599 (2004); State v. Crowder, 338 Ga. App. 642, 791 S.E.2d 423 (2016); Jenkins v. Keown, 351 Ga. App. 428, 830 S.E.2d 498 (2019); Stubbs v. Hall, 308 Ga. 354, 840 S.E.2d 407 (2020).
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, § 26-503 both sections are similar and some cases after 1968 cite both sections or § 27-601 only. Section 27-601 was explicitly repealed by enactment of the 1981 Code. Hence, cases decided after 1968 which cite § 27-601 only or with § 26-503 are included in a separate Code section.
Statute of limitations starts when crime known.
- Key to determining when the statute of limitations begins to run is to find when the offender or offense became known. State v. Brannon, 154 Ga. App. 285, 267 S.E.2d 888 (1980).
Offense 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).
Offense known by interested party.
- Statute of limitations does not begin to run in favor of the offender until the offender's 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).
Statute of limitations ends at indictment, not trial.
- 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 or time of the trial. Hall v. Hopper, 234 Ga. 625, 216 S.E.2d 839 (1975).
State must prove crime within statute 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).
Procedure for hearing statute of limitations questions.
- 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).
Decisions Under Former Code 1933, § 27-601 Before Enactment of Ga. L. 1968, p. 1249 State need only show prosecutor unaware of crime.
- When an offense is alleged to have been unknown, the state need only show that it was unknown to the prosecutor in order to make prima facie proof of that allegation. Taylor v. State, 174 Ga. 52, 162 S.E. 504 (1931), overruled on other grounds, Wood v. State, 219 Ga. 509, 134 S.E.2d 8 (1963);.
Crime presumed within statute after grand jury presentment if no prosecutor.
- In those cases when the offense is against society in general, and there is no prosecutor, the return by the grand jury of a presentment containing the exception will presumptively establish that the offense or offender was unknown until within two years before the indictment unless denied by evidence of the defendant. Walton v. State, 65 Ga. App. 124, 15 S.E.2d 455 (1941).
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).
Decisions Under Former Penal Code 1910, § 30 Statute does not run until proper parties aware of crime.
- Statute of limitations does not begin to run in favor of the offender until the offender's offense is known to the prosecutor, or to someone interested in the prosecution, or to someone injured by the offense. Kiles v. State, 48 Ga. App. 675, 173 S.E. 174 (1934).
Acquiring knowledge of bribe from official with special duty to report bribe.
- State official, having refused offer of bribery, was in no way implicated criminally, or under any legal restraint from reporting the case or testifying therein. It was the official's duty in a private capacity, and in an official capacity, to report the offense; and, it being the official's duty, the official's knowledge was imputable to the state and was knowledge of the state in legal contemplation; and this knowledge of the state was a bar to the prosecution under a presentment dated seven years after the offense, a misdemeanor, was committed. Taylor v. State, 44 Ga. App. 64, 160 S.E. 667 (1931), cert. dismissed, 175 Ga. 642, 165 S.E. 733 (1932), overruled on other grounds, State v. Tyson, 544 S.E.2d 444 (Ga. 2001).
Burden on state to prove exception.
- When, to relieve an accusation from the bar of the statute of limitations, a fact constituting an exception to the statute is alleged, the burden is on the state to prove the exception. Norman v. State, 44 Ga. App. 92, 160 S.E. 522 (1931).
In a criminal case, when an exception is relied upon to prevent the bar of the statute of limitations, it must be alleged and proved. Taylor v. State, 44 Ga. App. 64, 160 S.E. 667 (1931), cert. dismissed, 175 Ga. 642, 165 S.E. 733 (1932), overruled on other grounds, State v. Tyson, 273 Ga. 690, 544 S.E.2d 444 (Ga. 2001).
Burden to show company officers unaware of misdemeanor fraud.
- When from an accusation charging a misdemeanor, alleged to have been committed by defrauding a certain corporation, it appeared that the offense was committed more than two years before the date of the accusation, and it was alleged that the offense was unknown to the corporation until within the two years preceding the date of the accusation, the burden was upon the state to show that the offense was unknown until within that period to any of those officers or agents of the corporation whose knowledge would be imputable to it. Norman v. State, 44 Ga. App. 92, 160 S.E. 522 (1931).
Shifting burden to defendant.
- When it is stated that the indictment was not brought within the period of time allowed by law, because the offense or the offender was unknown, the state makes a prima facie case and shifts the burden of proof to the defendant when it is shown that the prosecutor or the party most interested did not know the offense, or the offender, as the case may be. Kiles v. State, 48 Ga. App. 675, 173 S.E. 174 (1934).
Defendant may rebut with notoriety of crime.
- When an offense is alleged to have been unknown, the state need only show that it was unknown to the prosecutor in order to make prima facie proof of that allegation. The defendant may rebut such proof by proving that the transaction alleged in the indictment as a violation of the law was known, and the general notoriety may be sufficient proof to establish the fact that it was not unknown. Norman v. State, 44 Ga. App. 92, 160 S.E. 522 (1931).
Rebuttal with proof victim knew of crime.
- Upon proof that the offense was unknown to the person aggrieved, the defendant may either show that it was known to the aggrieved person, or the defendant may show by evidence of common notoriety that the bar of the statute of limitations has attached. Kiles v. State, 48 Ga. App. 675, 173 S.E. 174 (1934).
When it is stated that the indictment was not brought within the period of time allowed because the offense or the offender was unknown, the state makes a prima facie case and shifts the burden of proof to the defendant, when it is shown that the prosecutor or the party most interested did not know the offense, or the offender, as the case may be. Upon such proof that the offense was unknown to the person aggrieved, the defendant may either show that the offense was known to the aggrieved person, or the defendant may show by evidence of common notoriety that the bar of the statute of limitations has attached. Taylor v. State, 44 Ga. App. 387, 161 S.E. 793 (1931).
RESEARCH REFERENCES
Am. Jur. 2d.
- 21 Am. Jur. 2d, Criminal Law, §§ 37, 144 et seq.
C.J.S.- 22 C.J.S., Criminal Procedure and Rights of the Accused, § 1 et seq.
ALR.
- Burden on state to show that crime was committed within limitation period, 13 A.L.R. 1446.
What is "infamous" offense within constitutional or statutory provision in relation to presentment or indictment by grand jury, 24 A.L.R. 1002.
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 of statutory limitation of time for criminal prosecution after commission of offense, 124 A.L.R. 1049.
Accessories to crimes enumerated in statute of limitations respecting prosecution for criminal offenses, as within contemplation of statute, 160 A.L.R. 395.
Nature of property or rights other than tangible chattels which may be subject of conversion, 44 A.L.R.2d 927.
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.