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State v. Dorsey

Court of Appeals of Georgia, Fourth Division

June 14, 2017

THE STATE
v.
DORSEY.

          DILLARD, P. J., RAY and SELF, JJ.

          Ray, Judge.

         Nakia 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.

         The 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.

         At the 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.

         The trial court granted Dorsey's motion to dismiss the misdemeanor charges and granted his plea in bar. The State appeals from that order.

         1. The 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 disagree.

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 facts.

(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).

         The 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 limitation.

         OCGA § 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).

         Dorsey 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. Id.

         The 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 ...

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