Pennington v. State, 323 Ga. App. 92

Pennington was convicted by a Dawson County jury on multiple counts of theft by conversion and theft by taking stemming from funds in his payroll escrow account.
The State filed an accusation December 4, 2009, charging four counts of theft by conversion related to 2006–2007 activity, with later counts alleging broader dates and additional victims.
Eight counts in the indictment (Counts 3–8, 10) charged theft by taking on specific 2006 dates, and Count 12 charged theft by conversion in 2007; Counts 1, 2, 11 charged theft by conversion with dates outside the four-year limit but tolled by discovery, and Count 9 was tried and acquitted.
Pennington moved to quash the indictment arguing statute-of-limitations issues; trial court reserved ruling on limits until after evidence, then denied demurrer except on the limitation issue.
The appellate court held Counts 3–8 and 10 were time-barred, Counts 1, 2, 11, 12 tolled under discovery, and that admission of evidence on barred counts prejudiced Pennington, necessitating new trial on certain counts and reversal of others.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did the indictment properly relate back to the accusation despite limitation issues?	Pennington contends the indictment substantially amended the original accusation and did not relate back, rendering Counts barred.	State contends related-back doctrine allows the superseding indictment if charges were timely and not broadened.	Relating back failed; indictment substantially amended accusation and was not timely.
Were Counts 3–8 and 10 time-barred on their face?	Counts 3–8 and 10 fall outside four-year window; improper prosecution.	State did not show applicable tolling for these counts.	Counts 3–8 and 10 were fatally defective; convictions reversed.
Did the State prove tolling for Counts 1, 2, and 11 sufficiently?	Counts 1, 2, and 11 required proof within four years or a tolling exception; State bore burden.	State showed discovery-based tolling for these counts.	Counts 11 and 1–2 tolled; denial of quash upheld for these counts.
Did prejudice from admitting barred-count evidence deny a fair trial on remaining counts?	Admission of evidence from barred counts unduly prejudiced jury.	Evidence admissible as similar transactions or probative of intent.	Undue prejudice material; new trial ordered on remaining counts.

Jenkins v. State, 278 Ga. 598 (Ga. 2004) (statute of limitation starts at crime; demurrer if facial bar)
State v. Barker, 277 Ga. App. 84 (Ga. App. 2005) (exceptions to running tolling must be alleged per count)
Martinez v. State, 306 Ga. App. 512 (Ga. App. 2010) (burden to prove timely offense or tolling exception)
Stack-Thorpe v. State, 270 Ga. App. 796 (Ga. App. 2004) (tolling discovery rule for statute of limitations)
Campbell v. State, 295 Ga. App. 856 (Ga. App. 2009) (discovery rule tolling depends on actual knowledge)
Lee v. State, 289 Ga. 95 (Ga. 2011) (amendments that broaden charges may bar related actions)