DILLARD, P. J., RAY and SELF, JJ.
Dorsey was indicted with two counts of false imprisonment,
two counts of sexual battery, and one count of simple battery
arising from incidents that took place during his employment
as a sheriff's deputy. The State appeals from the trial
court's order granting Dorsey's plea in bar and
motion to dismiss each count of the indictment. On appeal,
the State argues that the trial court erred in finding that
the three misdemeanor counts - two counts of sexual battery
and one count of simple battery - were barred by the statute
of limitation. The State also argues that the trial court
erred in granting Dorsey's motion to dismiss the two
counts of false imprisonment because the State allegedly
failed to comply with OCGA § § 17-7-52 and 45-11-4.
For the following reasons, we affirm the trial court's
dismissal of the three misdemeanor counts and reverse the
trial court's dismissal of the false imprisonment counts.
State alleges that Dorsey committed crimes against two women
on two separate dates. The indictment alleges that Dorsey
committed false imprisonment against one woman on October 3,
2011, and that Dorsey committed false imprisonment, two
counts of sexual battery, and one count of simple battery
against another woman on May 30, 2012. Dorsey filed a plea in
bar and motions to dismiss the indictment.
hearing on these motions, the State made the following
proffer: On the dates of the incidents, Dorsey was employed
as a deputy with the Fulton County Sheriff's Department
and was assigned to the court services division. On October
3, 2011, Dorsey was working in a courtroom when he
confiscated a cell phone from a female defendant in a court
proceeding. The woman was not in the custody of the State. He
later escorted the victim to an office adjacent to the
courtroom where he held her against her will, grabbed her
breasts and buttocks, placed her hand on his penis and
exposed his penis to her. On May 30, 2012, Dorsey was
assigned to a courtroom when he confiscated a cell phone from
another female defendant in a court proceeding. She was also
not in the State's custody. He later took the victim to
another courtroom on the fifth floor of the courthouse, where
he held her against her will while he touched her breasts and
buttocks, put his mouth on her breasts, and exposed his penis
to her. The women immediately made outcries to other
deputies. The October 2011 incident was handled internally,
but the May 2012 incident was reported to the police.
trial court granted Dorsey's motion to dismiss the
misdemeanor charges and granted his plea in bar. The State
appeals from that order.
State argues that the trial court erred when it granted
Dorsey's plea in bar as to the three misdemeanor counts
on the grounds that the indictment was filed one day late. We
The appellate standard of review for a plea in bar asserting
a statute of limitation defense is a de novo review of the
issues of law. As this ruling involves a mixed question of
fact and law, we accept the trial court's findings on
disputed facts and witness credibility unless they are
clearly erroneous, but independently apply the law to the
(Citation and punctuation omitted.) Royal v. State,
314 Ga.App. 20, 21 (1) (723 S.E.2d 118) (2012). The State
bears the burden of proving that a crime occurred within the
statute of limitation. State v. Boykin, 320 Ga.App.
9, 10 (1) (739 S.E.2d 16) (2013).
State's indictment was filed on May 30, 2014, exactly two
years after the incidents that took place on May 30, 2012.
The trial court granted Dorsey's plea in bar, reasoning
that the date of the offense is counted in the computation of
the limitation period and, thus, that the indictment had been
filed a day after the expiration of the statute of
§ 17-3-1 (e) provides that the "[p]rosecution for
misdemeanors shall be commenced within two years after the
commission of the crime." The two-year period in which a
misdemeanor must be prosecuted runs from the date the offense
is committed until the date the original accusation is filed.
Prindle v. State, 240 Ga.App. 461, 461 (1) (523
S.E.2d 44) (1999). See also Boykin, supra at 10 (1)
("In criminal cases, the period of limitation runs from
the commission of the offense to the date of the
indictment") (citation and punctuation omitted).
cites McClendon v. State, 14 Ga.App. 274 (80 SE 692)
(1914), for the assertion that the State's indictment was
filed a day late. In McLendon, this Court noted that
two lines of cases had developed: in one, "[w]here days
are to be computed, " the time computation statute
applied and "only the first or the last [day] counted,
" but in the other, where the computation is of months
or years, "the right is lost, unless invoked on or
before the day last preceding the day of the month or year
corresponding to the day upon which the right accrued."
Id. at 274-275. As the misdemeanor statute of
limitation was measured in years, and not days,
McClendon held that an accusation filed on the
second anniversary of the alleged crime was one day late.
State argues that McClendon has been superceded by
statute. In 1985, the General Assembly amended OCGA §
1-3-1, which governs the construction of statutes. OCGA
§ 1-3-1 (d) (3) provides, in pertinent part:
COMPUTATION OF TIME. Except as otherwise provided by time
period computations specifically applying to other laws,
when a period of time measured in days, weeks, months, years
or other measurements of time except hours is prescribed for
the exercise of any privilege or the discharge of any
duty, the first day shall not be counted but the last
day shall be counted; and, if the last day falls on
Saturday or Sunday, the party having such privilege or duty
shall have through the following Monday to exercise the
privilege or to discharge the duty. When the last day
prescribed for such action falls on a public and ...