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Statute of Limitations

How long does the State have to prosecute me?

Many times, the State will take a significant period of time before deciding to prosecute a case. Sometimes cases do not get accused or indicted for a couple of years. This is very frustrating to clients we have who obviously want to get the burden of being prosecuted off their backs. The waiting can oftentimes be the hardest part of being prosecuted for a crime. It is hard to be patient when facing the prospects of prison or other losses of liberty. There are limitations to prosecution in criminal cases pursuant to OCGA 17-3-1. OCGA 17-3-1 provides for the following limitations of prosecution:

  1. a prosecution for murder may be commenced at any time. This applies to the offense of felony murder as well since Georgia does not require the charging and conviction of the underlying felony only that the murder was committed in connection with the felony. Accordingly, the expiration of the statute of limitations for the felony offense underlying a charge of felony murder will not time bar the felony murder prosecution. State v. Jones, 274 Ga. 287 (2001). Note, however, the statute of limitations applicable in a criminal case is that which relates to the offense charged in the indictment, and not to any minor offense included therein of which the accused might be found guilty. The provisions of the statute of limitations applicable to an indictment for voluntary manslaughter will not bar a conviction of that offense under indictment for murder; there are no statutory limitations as to indictments for murder. Glidewell v. State, 279 Ga. App. 114 (2006); overruled by Reynolds v. State 285 Ga. 70 (2009).
  2. Except as otherwise provided in code section 17-3-2 .1, prosecution for other crimes punishable by death or life imprisonment shall be commenced within seven years after the commission of the crime; provided, however, that prosecution for the crime of forcible rape must be commenced within 15 years after the commission of the crime.
  3. Except as otherwise provided in code section 17-3-2.1, prosecution for felonies other than those specified in subsections a, b, and D of this code section shall be commenced within four years after the commission of the crime, provided that prosecution for felonies committed against victims who are at the time of the commission of the offense under the age of 18 years shall be commenced within seven years after the commission of the crime.
  4. A prosecution for the following defenses may be commenced at any time when DNA evidence is used to establish the identity of the accused:
    1. Armed robbery as defined in code section 16-8-41,
    2. Kidnapping, as defined in code section 16-5-40;
    3. Rape as defined in code section 16-6-1,
    4. Aggravated child molestation as defined in code section 16-6-4,
    5. Aggravated sodomy, as defined in code section 16-6-2;
    6. Aggravated sexual battery as defined in code section 16-6-22 .2; provided, however that a sufficient portion of the physical evidence tested for DNA is preserved and available for testing by the accused and provided, further, that, if the DNA evidence does not establish the identity of the accused, the limitations on prosecution shall be as provided in subsection B and C of this code section.
  5. Prosecution for misdemeanors shall be commenced within two years after the commission of the crime. OCGA 17-3-1.

If it appears on the face of the indictment the statute of limitations has run, the law firm of Howard and Arca would raise the defense by demurrer. Hansford v. State 54 Ga. 55 (1975). If the defect does not appear on the face of the indictment, Law Firm of Howard and ARCA would raise defense by a plea in bar. In Moss v. State 220 Ga. App. 150 (1996), it has long been the law in Georgia in a criminal case, or an exception is relied upon to prevent the bar of the statute of limitations and must be alleged and proved. Such proof is inadmissible unless the exception sought to be proved is alleged. Furthermore, the exception must be alleged in the indictment. Cases say if no exception was alleged in the indictment, the State is incapable of proving an exception to toll the applicable statute of limitations, as such proof was inadmissible unless the exception sought to be proved is alleged. State v. Aycock, 283 Ga. App. 876 (2007). The defendant is able to raise the issue prior to trial by way of plea in bar and, even if unsuccessful, he or she can still require the State to prove at trial that the charge is not barred by the statute. Jenkins v. State 278 Ga. 598 (2004). Contact Howard and Arca attorneys at Law with help on your criminal case.

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