Davis v. State

FINAL COPY

                S19G0394. DAVIS v. THE STATE.


     MELTON, Chief Justice.

     We granted a petition for certiorari in this case to address

whether a detainee who has not yet been indicted can seek to bar his

prosecution through a plea in bar on the basis that the statute of

limitation for prosecution has expired. We hold that a plea in bar is

not proper until an indictment has been filed.        Based on the

foregoing, we affirm the decision of the Court of Appeals.

     1. Factual Background.

     The underlying facts of this case are largely undisputed. In

June 1996, a woman was assaulted, sodomized, and raped, and her

residence was burglarized. No suspect was identified until March

2009, when a DNA match identified appellant Dewey Davis as the

alleged perpetrator.   At that time, Davis was serving a 20-year

prison sentence for another crime.      The police obtained arrest

warrants for Davis for burglary, aggravated assault, aggravated
sodomy, and rape. However, they did not serve the warrants until

Davis was released from prison in 2016, seven years after the

warrants were initially obtained.

     On June 23, 2016, Davis was arrested and transferred to the

Muscogee County Jail.         A magistrate judge held a preliminary

hearing for the 1996 crimes, at which Davis’s counsel asserted that

the charges were barred by the statute of limitation. The magistrate

judge noted the argument, bound the case over to superior court to

await indictment, and declined to set bond on any of the four

charges.1

     After five months in confinement with no indictment, on

November 28, 2016, Davis filed a motion for bond, pursuant to

OCGA § 17-7-50, and a plea in bar asserting that the burglary and

aggravated assault charges were barred from prosecution by the

applicable statute of limitation. Although the trial court set bond on

all four charges on December 19, 2016, Davis was unable to post



     1 We note that Davis did not seek to appeal this bond ruling, nor any

other bond ruling during the course of his case. See OCGA § 5-6-34 (b).
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bond and remained in confinement. In May 2017, the trial court

modified Davis’s bond to release him on his own recognizance

subject to various restrictive conditions of release, but rescinded the

order two days later.2 Davis remained in confinement.

      Though still not indicted, Davis amended his plea in bar twice

in 2017, extending his statute of limitation argument to the

aggravated sodomy and rape charges. The trial court held several

hearings on Davis’s plea in bar and, on September 21, 2017, the trial

court granted the motion as to the burglary and aggravated assault

charges, but denied it as to the aggravated sodomy and rape charges.

Davis then appealed the trial court’s denial of his plea in bar for the




      2 It is not entirely clear from the record what transpired with respect to

Davis’s bond after the rescission of the May 2017 order. Although Davis
attaches later bail documents and a court order as exhibits to his brief, those
exhibits are not part of the official appellate record. See Johnson v. State, 

 (3) (

) (2015) (appellant has the burden to ensure record is
complete); Arnold v. State, 

 (2) (

) (2010) (documents
not included in the official appellate record are not evidence that can be
considered by the Court). However, during oral argument, both parties agreed
that Davis was released on his own recognizance in February 2019, after
spending over three-and-a-half years in detention without having been
indicted.

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charges of aggravated sodomy and rape to the Court of Appeals.3

       In Davis v. State, 

 (

) (2018), the

Court of Appeals affirmed the trial court’s denial of Davis’s plea in

bar.     The court, however, did not address Davis’s statute of

limitation argument. Instead, the court held that “there can be no

challenge to an indictment through a special plea in bar until there

is an indictment filed,” and that, because Davis alleged that he was

being unlawfully detained, he should file a petition for a writ of

habeas corpus. See 

.4 We granted Davis’s petition for

certiorari to review the decision of the Court of Appeals.

       2. Analysis.

       Davis claims that the Court of Appeals erred in affirming the

trial court, arguing that a plea in bar, and not a petition for habeas

corpus, is the only appropriate method through which an individual

can challenge pre-indictment detention as barred by the statute of


       3 The State did not appeal the trial court’s decision on the burglary and

aggravated assault charges.
      4 Then-Presiding Judge McFadden dissented from the majority opinion,

asserting that a plea in bar — particularly one based on a statute of limitation
defense — can be filed prior to indictment. 

.
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limitation. The State contends that Davis should have raised the

statute of limitation issue in his motion for bond, and that the Court

of Appeals correctly determined that his pre-indictment plea in bar

was premature.5 We agree with the Court of Appeals that Davis

must wait for the prosecutor to file an accusation or indictment

before filing his plea in bar.

      Although not specifically defined by Georgia statute, pleas in

bar originate from English common law.6 A plea in bar is a challenge

to the validity of an indictment. Joel P. Bishop, Commentaries on

the Law of Criminal Procedure § 420 (1866) (collecting common law

sources and explaining that “[through] a plea in bar the defendant

shows, by matter extrinsic of the record, that the indictment is not

maintainable”). A plea in bar can be “in confession and avoidance,

that is admitting the facts charged but setting up new facts, either

by way of discharge or in excuse, or justification, in avoidance of


      5 Although Davis filed a motion for bond on the same day that he filed

his plea in bar, his motion did not raise the statute of limitation as an issue.
      6 “Georgia adopted the common law of England except to the extent that

Georgia’s statutory or constitutional law displaced it.” Hourin v. State, 

, 846 n.9 (

) (2017) (citing OCGA § 1-1-10 (c) (1)).
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liability.” William H. Lloyd, Pleading, 71 U. PA. L. REV. 26, 30 (1922)

(describing the common law art of pleading) (emphasis in original).

     A plea in bar based on the statute of limitation is one in

confession and avoidance, as its premise rests upon the assertion

that, even if all the facts as alleged in the indictment are true, the

defendant cannot be held liable due to the expiration of the statute

of limitation. See, e.g., Jenkins v. State, 

 (1) (A) (

) (2004). As such, this sort of “special” plea in bar “seeks

to defeat the . . . prosecutor’s action completely and permanently.”

Black’s Law Dictionary (11th ed. 2019).

     Under Georgia law, a prosecution commences with the return

of an indictment or the filing of an accusation. OCGA § 16-1-3 (14).

This provision is consistent with the common law principles of

pleading, which required a plaintiff to state his case in a pleading

before a defendant responds with his own pleading.7 See Lloyd,

supra, at 30; Franklin F. Heard, The Principles of Criminal Pleading



     7 In a criminal prosecution, the “plaintiff” is normally the State.   See
OCGA § 17-1-2.
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27-31, 262 (1879) (collecting and describing common law sources). It

stands to reason that a prosecutor must initiate an action, through

an indictment or formal accusation, before a person can file a

pleading challenging such action.       See OCGA § 17-7-110 (“All

pretrial motions, including demurrers and special pleas, shall be

filed within ten days after the date of arraignment, unless the time

for filing is extended by the court.”); OCGA § 17-7-111 (“If the

defendant, upon being arraigned, demurs to the indictment, pleads

to the jurisdiction of the court, pleads in abatement, or enters any

other special plea in bar, the demurrer or plea shall be made in

writing.”). Thus, until either an indictment or an accusation is filed,

a prosecutor’s action has not commenced and there is nothing for a

plea in bar to defeat. Cf. Stynchcombe v. Hardy, 

(2) (

) (1971) (courts cannot issue writ of prohibition

barring future prosecution prior to indictment).        Therefore, we

conclude that the Court of Appeals was correct in stating that

Davis’s plea in bar was improper prior to indictment.

     Distinguishing between challenging one’s prosecution and

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one’s pre-indictment detention, the Court of Appeals also opined

that Davis was not without a remedy, concluding that he could

challenge his pre-indictment detention through a writ of habeas

corpus.   Davis, supra, 

.        Although various

mechanisms may exist to challenge one’s pre-indictment detention,

including preliminary hearings, motions for bond and, in some

cases, writs of habeas corpus, we express no opinion as to the

propriety of these remedies in Davis’s case. Here, with regard to the

only trial court order before us, Davis sought only to bar his

prosecution in the trial court with a plea in bar, not to challenge his

detention with a writ of habeas corpus. Therefore, the issue of

whether habeas relief is available to address Davis’s detention was

not before the Court of Appeals and is not before us.

     Judgment affirmed. All the Justices concur.




                    DECIDED JANUARY 27, 2020.

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       Certiorari to the Court of Appeals of Georgia — 

.
     Jennifer J. Campbell, Victoria L. Novak, for appellant.
     Julia F. Slater, District Attorney, Ray W. Daniel, Assistant
District Attorney, for appellee.




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