CopyCited 23 times | Published | Supreme Court of Georgia | Feb 18, 2013 | 738 S.E.2d 584, 2013 Fulton County D. Rep. 299
...ng the tolling provision of OCGA §
17-3-2 (2). Royal v. State,
314 Ga. App. 20, 22-23 (723 SE2d 118) (2012). See also Womack v. State,
260 Ga. 21, 22 (3) (389 SE2d 240) (1990).
In addition, limitation periods for prosecutions are tolled under OCGA §
17-3-2.26 “if the victim is a person who is 65 years of age or older, . . . until the violation is reported to or discovered by a law enforcement agency, prosecuting attorney, or other governmental agency . . . .” Each count of the indictment asserted that OCGA §
17-3-2.2 applied because one of the alleged victims, Mr....
...,2001, and April 11,2003, all of which were more than four years prior to the return of the indictment. See OCGA §
17-3-1 (c). Accordingly, the State’s essential argument is that, as Mr. Glock was a victim over the age of 65, by operation of OCGA §
17-3-2.2, the statute of limitation applicable to theft and attempted theft charges did not begin to run until the offense was reported to law enforcement personnel, which dates were within four years of the return of the indictment.
1. The defendants contend that OCGA §
17-3-2.2 violates the Equal Protection Clauses of both the Federal and State Constitutions by treating them differently from similarly situated defendants on an arbitrary basis, exposing them to prosecution for a longer period of time based solely on the age of the alleged victim....
...Equal protection is violated only if the means adopted by the statute, or the classifications used, are irrelevant to the government’s legitimate objective, or are altogether arbitrary. Rainer v. State of Ga.,
286 Ga. 675, 677-678 (2) (690 SE2d 827) (2010). OCGA §
17-3-2.2 was enacted as part of the Georgia Protection of Elder Persons Act of 2000 (“Act”)....
...See OCGA §§
16-5-100,
16-9-6. As has been recognized, “[t]he care of aged persons in our society is a matter of great public concern.” Associated Health Systems, Inc. v. Jones,
185 Ga. App. 798, 800 (1) (366 SE2d 147) (1988). The effect of OCGA §
17-3-2.2 is to provide that criminals who prey upon the elderly may face prosecution for their crimes even though the crimes are not timely reported to law enforcement officers....
...The mere fact that the classification could have been more narrowly drawn does not render it constitutionally infirm. Id. Applying the applicable test, the defendants have failed to meet their burden of showing that there is no rational basis for the classification chosen in OCGA §
17-3-2.2, and we conclude that the classification does not violate the Equal Protection Clauses of the State and Federal Constitutions.
*5622.In the plea in bar, the defendants asserted that OCGA §
17-3-2.2 did not necessarily apply in this case because, as to at least some counts of the indictment, the alleged acts involved theft from a corporation or other entity, and not from Mr. Glock. In its order denying the plea in bar, the trial court correctly noted that OCGA §
17-3-2.2 was constitutional....
...However, the trial court then observed that Mr. Glock was a shareholder in, or a beneficial owner of, the entity from which the property in each count was alleged to be taken, and deemed that this fact established him to be a potential victim within the meaning of OCGA §
17-3-2.2, so that the statute could be applied.
We believe that the trial court erred in its analysis. Rather, to apply the tolling provision of OCGA §
17-3-2.2, it must be shown that the victim of the crime is a person over the age of 65. As noted above, the protection of such persons is the purpose of the statute. See Division 1, supra. OCGA §
17-3-2.2offers no protection to the interest of any corporation or other entity which is not “a person who is 65 years of age or older.” OCGA §
17-3-2.2....
...This is in keeping with the principle that, generally, corporations are separate legal entities from their shareholders. See Miller v. Marco Nat. Ins. Co.,
274 Ga. 387, 391-392 (3) (552 SE2d 848) (2001). Accordingly, in order to apply the statute of limitation tolling provision found in OCGA §
17-3-2.2, it must be shown that there was a theft directly from Mr....
...Glock is the only person “65 years of age or older” alleged in the indictment to be a victim. Thus, if it is shown that the property taken in any theft was, at the time of the theft, in fact the property of Glock, Inc., Consult-invest, Inc., or any other entity not a person over the age of 65, OCGA §
17-3-2.2 cannot be applied.
The State argues that this would conflict with the settled principle that “[Tjhose who steal will not be permitted to raise nice and delicate questions as to the title of that which is stolen....
...he prosecution when it did. Faced with a statute that governs a calculation of time based upon the age of “the victim,” it must be established that the victim falls into the protected class or the statute does not apply. For the purposes of OCGA §
17-3-2.2, the question is not whether the property involved is “property of another,” see OCGA §
16-8-1 (3), but whether the property alleged to be stolen is that of a person 65 years of age or older.
3. The defendants also contend that the trial court erred in finding that Counts 2 through ll7 of the indictment were not barred by the statute of limitation. In analyzing this issue, the trial court relied upon the erroneous conclusion that OCGA §
17-3-2.2 applied, and therefore concluded that the date that each crime became “known” within the meaning of OCGA §
17-3-2 (2) was the date upon which each crime was reported to law enforcement officers....
...(3) The accused is a government officer or employee and the crime charged is theft by conversion of public property while such an officer or employee; or
(4) The accused is a guardian or trustee and the crime charged is theft by conversion of property of the ward or beneficiary.
OCGA §
17-3-2.2 reads:
In addition to any periods excluded pursuant to Code Section
17-3-2, if the victim is a person who is 65 years of age or older, the applicable period within which a prosecution must be commenced under Code Section
17-3-1 or other...
CopyCited 10 times | Published | Supreme Court of Georgia | Aug 13, 2024 | 319 Ga. 711
...But there are circumstances that can extend or pause the
running of a limitations period. “Broadly speaking, OCGA §
17-3-1
limits the time within which a prosecution for particular offenses
must commence, while OCGA §§
17-3-2,
17-3-2.1, and
17-3-2.2
specify periods that are excluded from the various limitations
periods[,]” known as tolling exceptions, and OCGA §
17-3-3 specifies
circumstances that can warrant an extension of the statute of
limitations....
...40, 42 (2) (764 SE2d 848) (2014).
The State bears the burden to prove that a crime occurred
within the statute of limitations. See Lewis v. State,
306 Ga. 455,
462-463 (4) (831 SE2d 771) (2019). Under our precedent, whether
the State relies on an exception under OCGA §§
17-3-2,
17-3-2.1, and
17-3-2.2 or an extension under OCGA §
17-3-3 generally determines
13
the State’s burden to allege and prove the application of such a
provision....
...eate tolling exceptions
to the statute of limitations that pause the running of the limitations
period for varying durations of time when certain specified facts are
present, and these exceptions are set forth in OCGA §§
17-3-2, 17-3-
2.1, and
17-3-2.2.9 Because these tolling exceptions are triggered
only upon the occurrence of specified facts, if the State relies on such
an exception “to prevent the bar of the statute of limitation[s], it
9 OCGA §
17-3-2 tolls the statute of...
...of property of the ward or beneficiary.” OCGA §
17-3-2. OCGA §
17-3-2.1 tolls
the applicable time period only for particular crimes and only until the victim
reaches a particular age or the violation is reported, whichever is first. See
OCGA §
17-3-2.1. And OCGA §
17-3-2.2 tolls the applicable period only if the
victim is a particular age and until the violation is either reported or discovered
by the appropriate government agency, whichever is first....
...jurisdiction of the issuing official, regardless of the facts of those
cases. OCGA §
38-3-62.
Given this background, orders issued under the Judicial
Emergency Act do not resemble either a tolling exception similar to
those under OCGA §§
17-3-2 to
17-3-2.2 or an extension similar to
that provided by OCGA §
17-3-3....
...Moreover, orders issued under the Judicial
Emergency Act operate differently than the exceptions and
extension provided by those other provisions.
Unlike the tolling exception provisions set forth in OCGA §§
23
17-3-2 to
17-3-2.2, which are clearly limited in application to
criminal cases and to the factual scenarios set forth in those
provisions,17 orders under the Judicial Emergency Act apply
identically to every case within the scope of the order and within the
jurisdiction of the issuing judicial official to the extent provided in
the order, “whether in civil or criminal cases, or administrative
matters,” regardless of the facts of those cases. OCGA §
38-3-62; cf.
OCGA §§
17-3-2 to
17-3-2.2.18 Although exceptions under those
provisions necessarily involve a question of fact — i.e., whether the
facts triggering the exception are present — no such question of fact
exists for the contested orders issued under the Act in this case,
17 OCGA §§
17-3-2 to
17-3-2.2 statutorily list factual scenarios where
those provisions toll the statute of limitations. See OCGA §§
17-3-2 to
17-3-2.2.
Those lists do not include orders issued under the Act....
...But this contention
misses key points. There is no need for notice in this context because
26
the issuance of such an order is a fact of which the court can take
judicial notice. In the context of tolling exceptions under OCGA §§
17-3-2 to
17-3-2.2, questions of fact exist for the jury to determine.
There, the State must allege its reliance on a tolling exception so
that the defendant can timely prepare a defense — and the
defendant’s ability to mount a defense is a meaningful o...
...cial notice, so
there is nothing for the State to prove in this context.21 Put another
way, there is no factual defense that a defendant can mount against
the application of a valid order that, unlike tolling exceptions under
OCGA §§
17-3-2 to
17-3-2.2 which can turn on factual predicates, is
rather made effective as a matter of law upon an official issuing that
order in compliance with the Judicial Emergency Act....
...period, nothing prevents that defendant from challenging that
accusation by a special demurrer, general demurrer, or plea in bar,
as Garrison did in this case. See, e.g., Rivera,
317 Ga. at 405-406 (1)
(a). If the State relies on a tolling exception under OCGA §§
17-3-2
to
17-3-2.2 without alleging that exception in the accusation, the
State’s failure to do so would render that accusation fatally defective
as a matter of law, consistent with our precedent....
