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Official Opinion 98-1

Official Opinion 98-1

January 7, 1998
To: 

District Attorney
Eastern Judicial Circuit

Re: 

A prosecution for a misdemeanor violation of O.C.G.A. ¿ 16-9-20, deposit account fraud, is commenced when a citation meets all the requirements of O.C.G.A. ¿ 15-10-202(b) and O.C.G.A. ¿ 15-10-202(c) including the signing of the citation by a judge or clerk of the magistrate court and proper service of the citation by a law enforcement officer.

This is in response to your inquiry regarding when a prosecution commences for the offense of deposit account fraud under O.C.G.A. § 16-9-20, when that prosecution is proceeding by citation in magistrate court. In addition, you reference the two year statute of limitations on prosecutions for misdemeanors set forth in O.C.G.A. § 17-3-1(d).

When prosecuting a misdemeanor, the prosecution “must be commenced within two years after the commission of a crime.” O.C.G.A. § 17-3-1(d) (emphasis added). For criminal cases, the statute of limitations generally runs from the time of the crime to the time of indictment. Cain v. State, 144 Ga. App. 249 (1977). Your inquiry, of course, involves a prosecution by citation, not indictment, and the statutes specifically relevant to those prosecutions dictate when a prosecution actually commences.

As you have indicated, O.C.G.A. § 15-10-202 provides:

Prosecution for a misdemeanor violation of Code Section 16-9-20 [deposit account fraud] may proceed by arrest, . . . and an accusation, . . . or by citation.

Under O.C.G.A. § 15-10-202(c), the procedure for commencement of the prosecution is set forth as follows:

Prosecutions upon citation shall be commenced by the completion and signing of the citation by a judge or clerk of the magistrate court and service of the citation by a law enforcement officer. The original of the citation shall be personally served upon the accused and a copy shall promptly be filed with the court.

(Emphasis added.)

In addition there are requirements for proceeding to prosecute by citation which are found at O.C.G.A. § 15-10-202(b). Those provisions require that:

Each citation shall be based upon an affidavit as in the issuance of an arrest warrant and said citation shall state the time and place at which the accused is to appear for trial, shall identify the offense with which the accused is charged, shall have an identifying number by which it shall be filed with the court, shall indicate the identity of the accused and the date of service, and shall be signed by a judge or clerk of the magistrate court.

After the statutory requirements contained in O.C.G.A. § 15-10-202(b) and O.C.G.A. § 15-10-202(c) have been completed, including the signature of the judge or clerk of the magistrate court and personal service of the citation by a law enforcement officer, then the prosecution has been “commenced” within the meaning of O.C.G.A. § 17-3-1(d).

Prepared by:

CAROL A. CALLAWAY
Senior Assistant Attorney General