City of Cleveland v. Hirsch

• Decision Date: 01 April 1971
• Docket Number: No. 30432,30432
• Citation: 55 O.O.2d 26,268 N.E.2d 600,26 Ohio App.2d 6
• Parties: , 55 O.O.2d 26 CITY OF CLEVELAND, Appellee, v. HIRSCH, Appellant.
• Court: Ohio Court of Appeals

Page 6

26 Ohio App.2d 6

268 N.E.2d 600, 55 O.O.2d 26

CITY OF CLEVELAND, Appellee, v. HIRSCH, Appellant.

No. 30432.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

April 1, 1971.

Syllabus by the Court

1. The failure to commence an action within one year after the violation of an ordinance or commission of an offense covered by R.C. 1905.33, deprives the court of jurisdiction to hear the prosecution, and if judgment is entered against the defendant it is void.

2. A court is without jurisdiction to hear the prosecution of an action covered by R.C. 1905.33 when the affidavit charging the offense shows on its face that the statute of limitations has run.

3. R.C. 1905.33 may be asserted as a defense to a criminal prosecution for the first time after a trial and conviction of a defendant.

Clarence L. James, J., director of law, and Robert V. Kinkela, Cleveland, for appellee.

Schulman & Schulman, Cleveland, for appellant.

KRENZLER, Judge.

On January 15, 1970, an affidavit was executed charging appellant Hirsch with violating the housing code of the city of Cleveland. The affidavit was based upon an inspection of appellant's premises made on January 13, 1969, and alleged that certain violations had been committed on that date.

Appellant entered a plea of not guilty, the cause was heard, and appellant was found guilty. She filed a motion for a new trial, alleging for the first time that R.C. 1905.33 ^* barred the prosecution. The motion was denied and appeal was taken to this court.

Appellant asserts that the affidavit by which this prosecution was initiated reveals that it was not filed until more than one year after the violation allegedly occurred. Appellant argues that the prosecution for that offense is therefore prohibited by R.C. 1905.33.

Appellee, city of Cleveland, contends, however, that by entering a plea of not guilty and proceeding to trial, appellant has waived the right to rely upon the statute of limitations, and may not now, after her conviction, raise the statute as a defense for the first time. Appellee also relies on R.C. 2941.29, which is as follows:

'No indictment or information shall be quashed, set aside, or dismissed, or motion to quash be sustained, or any motion for delay of sentence for the purpose of review be granted, nor shall any conviction be set aside or reversed on account of any defect in form or substance of the indictment or information, unless the objection to such indictment or information specifically stating the defect claimed, is made prior to the commencement of the trial, or at such time thereafter as the court permits.'

It is well recognized that a statute of limitations, in a civil case, is an affirmative defense, which is deemed waived if not timely asserted by way of answer, or in certain cases by a demurrer or by a motion to dismiss.

But, the nature of statutes of limitations pertaining to criminal prosecutions is quite different. It is universally held that such statutes cannot be waived by failure to assert them, but may be raised any time, before or after conviction.

In Akron v. Akins (1968), 15 Ohio App.2d 168, 239 N.E.2d 430, defendant had plead guilty to a misdemeanor and subsequently requested leave to change that plea, and was refused. On appeal, the court held that where an affidavit charging a violation of a city ordinance is filed after the time for prosecution provided by R.C. 1905.33, the trial court is without jurisdiction to hear the case, and hence the guilty plea was a nullity.

Numerous cases from other states have held that a statute of limitations may be raised as a defense to a criminal prosecution after judgment has been entered. State v. Civilla (Mo.App.1963), 364 S.W.2d 624; State v. Morris (1959), 81 Idaho 267, 340 P.2d 447; McIlwain v. State (1956), 226 Ark. 818, 294 S.W.2d 350; State v. Tennyson (1944), 73 N.D. 259, 14 N.W.2d 171; People v. McGee (1934), 1 Cal.2d 611, 36 P.2d 378; Nelson v. State (1879), 17 Fla. 195.

These cases state that the time within which the offense is committed becomes a jurisdictional fact, which the state bears the burden of proving; that a statute of limitations applicable to crimes is jurisdictional, and goes to the trial court's power to try the case; and that the statute creates a bar to prosecution. See also Benes v. United States (C.C.A.6, 1960), 276 F.2d 99; and People v. Hines (1940), 284 N.E. 93, 29 N.E.2d 483.

In the federal courts there is some diversity of opinion on the question. Waters v. United States (C.C.A.10, 1964), 328 F.2d 739, and United States v. Harris (W.D. Mo.1955), 133 F.Supp. 796, aff'd on other grounds (C.C.A.8, 1956), 237 F.2d 274, also hold that a statute of limitations, where applicable, operates as a jurisdictional bar to prosecution and punishment, and hence 99; and People v. Hines (1940), 284 N.Y. guilty. United States v. Doyle (C.C.A.2, 1965), 348 F.2d 715 holds that the statute of limitations is not of jurisdictional character, and is...