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Benjamin A. Davis

Benjamin Davis’s Answers

3 total

  • Under GA criminal code what are the statute of limitations on a child cruelty charges

    Can a child cruelity case be indicted after 6 years?

    Benjamin’s Answer

    The question presented is whether a cruelty to children case can be indicted after 6 years?

    The answer is as of July 1, 2002, the State would have as a general matter seven years from the date of the commission of the crime ... pursuant to O.C.G.A. §17-3-1( c).

    However, before July 1, 2002, the seven year statute of limitations only applied to victims who were at the time of the commission of the offense under the age of 14.

    Accordingly, if the crime occurred before said date, and the victim was 14 years or older the statute of limitations would be four years. See Thompkins v. State, 265 Ga. App. 760 (2004)

    In Tompkins v. State, 265 Ga App 760 (2004), the Court of Appeals ruled that the trial court should have barred prosecution for some of the acts of alleged molestation because some acts were alleged to have occurred after the victim turned 14 and, based on O.C.G.A. §§ 17-3-1(c), -2.1(a) had to be brought within 4 years of the victim attaining the age of 16. Prosecution for felonies other than [murder and other crimes punishable by death or life imprisonment] must be commenced within four years after the commission of the crime, provided that prosecution for felonies committed against victims who are at the time of the commission of the offense under the age of 14 years must be commenced within seven years after the commission of the crime.

    Any of the acts of molestation that occurred between the child's fourteenth birthday and the last date alleged in the indictment, January 14, 1997, would not fall under the seven-year time limit for felonies committed against victims under fourteen. Rather, any such offenses committed when the victim was fourteen and fifteen would instead be governed by the four-year statute of limitation. Since the indictment was returned almost six months after that expiration date, the state was barred by the statute of limitation from prosecuting the defendant for any acts of molestation that occurred when the child was fourteen and fifteen.

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  • Did not receive warrant hearing.

    I never received a letter for a warrant hearing. I went to court regarding a restraining order my ex took out against me. He did not show the order was dismisssed as I tried to leave I was arrested. The accuser gave the court a fake address for...

    Benjamin’s Answer

    The question presented is whether a warrant can be quashed because the person taking out the warrant mislead the Court by submitting a false address for the person whose arrest was sought?

    The answer is it depends on whether there existed probable cause for the arrest despite the fact that the person whose arrest was sought was never notified?

    While it is true that pursuant to O.C.G.A. §17-4-40(b)(2) that a warrant application hearing shall be conducted only after attempting to notify the person whose arrest is sought by any means approved by the judge or other officer which is reasonably calculated to apprise such person of the date, time, and location of the hearing.

    It is also true that pursuant to another subsection of the same statute, O.C.G.A. § 17-4-40(b)(2), “no warrant shall be quashed nor evidence suppressed because of any irregularity in proceedings conducted pursuant to this subsection ...”

    In fact, a Judge is specifically authorized by this Code Section to conduct a hearing even if the person whose arrest is sought does not appear as O.C.G.A. §17-4-40(b)(3) states in pertinent part as follows: if the person whose arrest is sought does not appear for the warrant application hearing, the judge or other officer shall proceed to hear the application and shall note on the warrant application that such person is not present.

    The apparent remedy for giving false information under oath to a magistrate is found in O.C.G.A. §16-10-70 which makes perjury a crime.

    O.C.G.A. § 16-10-70(a) states in pertinent part as follows: a person to whom a lawful oath or affirmation has been administered commits the offense of perjury when, in a judicial proceeding, he knowingly and willfully makes a false statement material to the issue or point in question.

    Lastly, it seems unlikely that the Judge knew that the property was owned by the person who was alleged to have damaged it as pursuant to O.C.G.A. §16-7-23(a)(1), the crime of Criminal Damage to Property in the Second Degree requires that one intentionally damage the property of another person ...

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  • Restraining order for emailing?

    Hello I correspond with my husband's ex about the kids via email, cause I prefer not to talk to her. Recently I sent email advising her I will be transferring money into her account, as my husband has done in the past, for his son B-day since he ...

    Benjamin’s Answer

    The issue presented is whether contacting another person via e-mail constitutes sufficient grounds for said person to obtain a protective order?

    The answer is that it would be up to the Judge who hears your case.

    As a general mater, pursuant to O.C.G.A. §16-5-94(a) A person who is not a minor who alleges stalking by another person may seek a restraining order by filing a petition alleging conduct constituting stalking as defined in Code Section 16-5-90.

    O.C.G.A. §16-5-90(a)(1) defines stalking in pertinent part as follows: a person commits the offense of stalking when he or she ... contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person. For the purpose of this article, the terms "computer" and "computer network" shall have the same meanings as set out in Code Section 16-9-92; the term "contact" shall mean any communication including without being limited to communication in person, by telephone, by mail, by broadcast, by computer, by computer network, or by any other electronic device; and the place or places that contact by telephone, mail, broadcast, computer, computer network, or any other electronic device is deemed to occur shall be the place or places where such communication is received.

    The Code Section defines “harassing and intimidating" as follows : knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person's safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose.

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