Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Beavers v. State

Court of Appeals of Georgia, Third Division

May 24, 2018

BEAVERS
v.
THE STATE.

          ELLINGTON, P. J., BETHEL, J., and SENIOR APPELLATE JUDGE PHIPPS, J.

          Ellington, Presiding Judge.

         Under an indictment returned on November 19, 2015, Terence Beavers stands accused in the Superior Court of Cobb County of kidnapping, aggravated sodomy (two counts), and rape. Beavers filed a plea in bar, arguing that prosecution of the offenses, which involved a single attack twenty years earlier on March 26, 1994, was barred by the applicable statutes of limitation. After a hearing, the trial court rejected the plea in bar, based on a finding that the State had proved that the case falls within a Code section that tolls the statutory period of limitation applicable to certain offenses, including those charged in the subject indictment, "when deoxyribonucleic acid (DNA) evidence is used to establish the identity of the accused[.]" OCGA § 17-3-1 (d).[1] We granted Beavers's application for interlocutory review. Because the General Assembly expressly provided that the Act that established the DNA-identification tolling provision would apply to crimes which occurred on or after July 1, 2002, we reverse.

         "In criminal cases, the period of limitation runs from the commission of the offense to the date of the indictment. The burden is on the State to prove that a crime occurred within the applicable statute of limitation." (Citation and punctuation omitted.) Flournoy v. State, 299 Ga.App. 377, 378 (1) (682 S.E.2d 632) (2009).[2] "On appeal from the grant or denial of a plea in bar, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, as here, we review de novo the trial court's application of the law to the undisputed facts." (Citation and punctuation omitted.) State v. Mullins, 321 Ga.App. 671 (742 S.E.2d 490) (2013).[3]

         Beavers contends that the DNA-identification tolling provision does not apply to these offenses because they occurred before July 1, 2002, and that the trial court therefore erred in rejecting his plea in bar.

         When these offenses occurred on March 26, 1994, the offenses of kidnapping (other than kidnapping for ransom and kidnapping where the person kidnapped received bodily injury) and aggravated sodomy were punishable by imprisonment for not less than one nor more than twenty years.[4] Consequently, the statutory period of limitation for these offenses was four years.[5] Absent any tolling of the limitation period, no indictment on these offenses could be brought after March 26, 1998.

         As to the rape charge, in March 1994, the offense of rape was punishable by death or by imprisonment for life, or by imprisonment for not less than one nor more than 20 years.[6] Initially, then, the statutory period of limitation for rape was seven years.[7] In 1996, before the seven-year period ran with regard to the rape charge in this case, the statutory period of limitation for forcible rape was lengthened to fifteen years, and it remains so today.[8] Absent any tolling, therefore, no indictment could be brought after March 26, 2009.

         As noted above, the subject indictment was returned in November 2015. The indictment invoked the DNA-identification tolling provision, OCGA § 17-3-1 (d), [9] with the following coda:

         TOLLING PROVISION

For each of the aforementioned counts of this Indictment to which the statute of limitations applies, [kidnapping, aggravated sodomy, and rape, ] pursuant to OCGA § 17-3-1, the Grand Jurors aforesaid also find that deoxyribonucleic acid (DNA) evidence was used to establish the identity of the accused . . .; to wit: said accused was positively identified as having committed the aforementioned crimes by use of DNA results that were obtained on May 22, 2014.[10]

         We conclude, however, that the DNA-identification tolling provision did not apply in this case. As referenced above, the General Assembly expressly provided, in Section 2 of the Act that established the DNA-identification tolling provision, that the Act would "be effective on July 1, 2002, and apply to crimes which occur on or after July 1, 2002[.]"[11] The State's reliance on OCGA § 17-3-1 (d) is therefore futile with regard to crimes that occurred before the date specified in the 2002 Act.[12]

         The State disputes this, arguing that Section 2's effective date conflicted with language in the preamble to the Act identifying as the purpose of the Act "to provide that a prosecution for serious violent offenses may be commenced at any time under certain circumstances[.]"[13] There is no such conflict. That the offense at issue have occurred "on or after July 1, 2002" was plainly one of the "certain circumstances" expressly specified in the Act. At any rate, the preamble to an act, where the provisions of the preamble are not included in the body of the act, "is no part [of the act] and cannot control the plain meaning of the body of the act." State v. Ware, 282 Ga. 676, 678 (653 S.E.2d 21) (2007).[14] Here, the plain meaning of the body of the 2002 Act, which specifies by date the crimes to which the new tolling provision shall apply, is controlling. Id. The DNA-identification tolling provision does not apply in this case.

         Alternatively, the State argues that the statutory periods of limitation were tolled under the person-unknown tolling provision, OCGA § 17-3-2 (2), [15] because "it was not until the DNA match in 2014 that [Beavers] was positively confirmed to be the perpetrator."[16] The record shows that the State raised the person-unknown tolling provision in connection with an earlier, later abandoned, indictment, but did not include it as a basis for tolling in the subject indictment.[17] Under controlling authority, moreover, the person who committed a crime is not "unknown" within the terms of OCGA § 17-3-2 (2) simply because his identity has not been positively confirmed by forensic evidence. Rather, the person-unknown tolling exception applies only where "there is no identified suspect among the universe of all potential suspects." (Emphasis added.) Jenkins v. State, 278 Ga. 598, 603 (1) (A) (604 S.E.2d 789) (2004). As the Supreme Court of Georgia explained:

The tolling exception to the statute of limitations cannot be based upon the subjective opinion of the district attorney as to whether there was enough evidence to file charges against a particular person. Otherwise, there would be tolling of the statute of limitations for routine investigation into a crime; the State could build a case against a non-murder suspect[18] for five or ten years and then file charges when it believes that it has obtained sufficient evidence by claiming that the statute of limitations was ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.