Desalvo v. State

The 4-year statute of limitation set forth in O.C.G.A. § 17-3-1 c barred the defendant's indictment for aggravated assault and second degree criminal property damage.

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Lester Desalvo III appeals from the trial court’s denial of his plea in bar, asserting that his indictment was barred by the applicable four-year statute of limitations under OCGA § 17-3-1 c. On June 9, 2008, the State indicted Desalvo on one count of aggravated assault and one count of criminal damage to property in the second degree arising out of an incident that was alleged to have occurred on May 31, 2004. The State pled in the indictment that Desalvo’s identity was unknown until August 24, 2006. Desalvo asserted in his plea in bar, however, that his identity was known to the alleged victim at the time of the incident and that the indictment was thus untimely under OCGA § 17-3-1 c. The trial court issued a rule nisi order on October 14, 2008, and held a hearing in the matter on November 6. The State called no witnesses and presented no evidence at the hearing. Instead, the prosecutor made only an offer of proof to support the State’s argument that Desalvo’s identity was unknown until later DNA testing placed him at the crime scene. The trial court subsequently denied Desalvo’s plea in bar.

Desalvo contends that the trial court erred in denying his plea in bar because the State failed to carry its burden of presenting evidence establishing an exception to the statute of limitations. See Jenkins v. State , 278 Ga. 598, 604 1 B 604 SE2d 789 2004 proper procedure for litigating plea in bar based upon statute of limitations analogous to a pretrial Jackson v. Denno 1 hearing; State v. Robins , 296 Ga. App. 437, 439 674 SE2d 615 2009 burden unquestionably upon State to prove case properly falls within exception to statute of limitations. The State concedes that it has the burden of proof on the plea in bar, but argues that because the trial court’s ruling was not based upon any evidence, this Court has nothing to review, and we should remand the case for a new hearing on the matter.

Desalvo v. State

The 4-year statute of limitation set forth in O.C.G.A. § 17-3-1 c barred the defendant's indictment for aggravated assault and second degree criminal property damage.

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