THE STATE v. SMITH, 242 Ga. App. 295

Barnes, Judge. The State appeals the trial court’s grant of Gregory Alan Smith’s motion to dismiss. See OCGA § 5-7-1 (3). The State contends the trial court erred by finding that Smith’s indictments were returned after the statute of limitation expired. Because the record establishes that the prosecution was commenced beyond the seven-year period prescribed in OCGA § 17-3-1 (c), however, we must affirm the trial court.

The indictments, all returned on December 2, 1998, allege that between January 1, 1989, and December 31, 1989, Smith committed incest, child molestation, and aggravated child molestation against his daughter and that at the time of the crimes she was under the age of 14. The indictments also allege that the crimes were first reported to a government agency within seven years before the return of the indictment. Smith asserts correctly that OCGA § 17-3-2.1 does not apply in this case because crimes alleged in the indictments occurred before July 1, 1992.

The State contends, however, that this court’s, decision in Johnston v. State, 213 Ga. App. 579, 580 (445 SE2d 566) (1994) (physical precedent), is applicable and that under the Johnston case the statute of limitation was tolled until the victim in this case reached her sixteenth birthday or until the violation was reported to the law enforcement authorities, regardless of the applicability of OCGA § 17-3-2.1. Although the State’s position appears to have merit initially, the Johnston case does not actually accomplish what it appears to do.

For Johnston to be controlling authority, a majority of the nine judges on this court at the time would have had to concur fully in that opinion. This was not done. Instead, eight of the judges who considered Johnston concurred in the judgment only, and thus the case constitutes physical precedent. Court of Appeals Rule 33 (a). Therefore, Johnston merely decided the issues in that case and is not binding precedent. Id. As a result, Johnston did not overrule Sears v. State, 182 Ga. App. 480 (356 SE2d 72) (1987), and did not establish a tolling period.

Accordingly, the trial court did not err by granting Smith’s motion to dismiss based upon the expiration of the statute of limitation. Judgment affirmed. Eldridge, J., concurs. Blackburn, P. J, concurs specially.