                                 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

                                        2
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

                                           4
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


                                            5
‘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

                                          6
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.

                                          7
      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)

                                           8
(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.




                                           9
 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).
