FOURTH DIVISION
DILLARD, P. J.,
RAY and SELF, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
June 14, 2017
In the Court of Appeals of Georgia
A17A0108. THE STATE v. DORSEY.
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
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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 SE2d
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 SE2d 16) (2013).
3
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 SE2d 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
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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 legal holiday . . . the
party having the privilege or duty shall have through the next business
day to exercise the privilege or to discharge the duty.
(Emphasis supplied). However, OCGA § 1-3-1 (d) (3) does not apply to the statute
of limitations in criminal prosecutions. In McClendon, supra, this Court specifically
held that a criminal “prosecution is not the ‘exercise of any privilege’ or the
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‘discharge of any duty’ by a person claiming a right, and certainly in criminal
prosecutions Sundays are not to be excluded in the calculation of time.” McClendon,
supra. When interpreting the meaning of a statute,
we must presume that the General Assembly had full knowledge of the
existing state of the law and enacted the statute with reference to it. We
construe statutes in connection and in harmony with the existing law,
and as a part of a general and uniform system of jurisprudence, and their
meaning and effect is to be determined in connection, not only with the
common law and the constitution, but also with reference to other
statutes and the decisions of the courts.
(Punctuation and footnotes omitted.) Chase v. State, 285 Ga. 693, 695 -696 (2) (681
SE2d 116) (2009). See also Barbush v. Oiler, 158 Ga. App. 625, 625 (281 SE2d 359)
(1981) (“Statutes are to be construed in connection and in harmony with existing
law”) (citation and punctuation omitted).
Since we assume that the General Assembly had knowledge of the holding in
McClendon, supra, it is clear that by specifically noting that OCGA § 1-3-1 (d) (3)
applies only to the “exercise of any privilege or the discharge of any duty[,]” the
General Assembly excluded criminal prosecutions from the calculation of the statute
of limitations in that statute. Criminal defendants have the right to be prosecuted in
a timely manner, and it is clear that the General Assembly did not grant the State
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additional time in which to seek such a prosecution if the statute of limitations falls
on a weekend or a legal holiday.1 Accordingly, we find that the trial court did not err
in concluding that the State’s prosecution of the three misdemeanor charges was
barred by the statute of limitation.
2. Dorsey moved to quash the indictment on the ground that he had not been
permitted to be present and to make a sworn statement when the case was presented
to the grand jury. “Peace officers are afforded these rights under OCGA §§ 17-7-52
and 45-11-4 if charged with a crime which is alleged to have occurred while in the
performance of their official duties.” (Citation and punctuation omitted.) Gober v.
State, 203 Ga. App. 5, 5 (1) (416 SE2d 292) (1992), overruled in part on other
grounds, Dudley v. State, 273 Ga. 466, 468, n. 4 (542 SE2d 99) (2001). The trial court
granted the motion, finding that Dorsey was performing his official duties because
he was on duty in the courthouse and in uniform at the time of the alleged crimes. The
State alleges that this finding was in error. Under precedent to which we are bound,
we agree and reverse this holding by the trial court.
1
Under the rationale and analysis put forth by the State, it might have more
than two years to file an indictment under OCGA § 1-3-1 if that date falls on a
Saturday. If the following Monday were also a holiday, it could even receive two or
more extra days to file an indictment. We do not agree that this is permitted by OCGA
§ 1-3-1.
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OCGA § 17-7-52 (a) “was intended to afford police officers the same
procedural protection afforded to other public officials as to accusations arising from
the performance or non-performance of their official duties.” (Punctuation and
footnote omitted.) Worthy v. State, 307 Ga. App. 297, 304 (3) (704 SE2d 808) (2010).
OCGA § 45-11-4 is “narrowly drawn and relate[s] only to misconduct in public
office.” (Punctuation and footnote omitted.) Id.
In Gober, supra, this Court held that a Georgia State Patrol officer who took
a driver into custody for DUI was not acting in the performance of his official duties
when, instead of taking her to jail, he drove her to a secluded place and exchanged
sex for a promise not to arrest her. Accordingly, the trial court’s denial of the
defendant’s motion to quash the indictment for failure to comply OCGA § § 17-7-52
and 45-11-4 was not in error. Id. at 5-6 (1).
In the instant case, Dorsey did not testify at the hearing on the motion to quash
the indictment, but the State acknowledged that he was a certified peace officer and
that the alleged offenses occurred during his working hours. However, Dorsey
stepped aside from the performance of his official duties when he allegedly engaged
in acts of restraining women against their will, groping their breasts and buttocks, and
exposing his genitalia. See State v. Galloway, 270 Ga. App. 184, 185 (606 SE2d 273)
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(2004) (police officer who took women into custody and forced them to engage in
sexual intercourse was not doing so in the performance of his official duties); Wiggins
v. State, 280 Ga. 268, 269-270 (1) (626 SE2d 118) (2006) (police officer was not
acting in the course of his official duties when he threatened a minor with arrest if she
did not have sex with him).
Judgment affirmed in part and reversed in part. Self, J., concurs. Dillard, P.
J., concurs fully to Division 1 and concurs in the judgment only as to Division 2.
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A17A0108. THE STATE v. DORSEY.
DILLARD, Presiding Judge, concurring fully in Division 1 and concurring in
judgment only in Division 2.
I concur fully in Division 1 and concur in judgment only in Division 2 because
I do not agree with all that is said in that division of the majority opinion. As a result,
Division 2 of the majority opinion decides only the issues presented in that division
and may not be cited as binding precedent. See Court of Appeals Rule 33 (a).