John v. State

• Decision Date: 06 May 1980
• Docket Number: No. 78-596-CR,78-596-CR
• Citation: 291 N.W.2d 502,96 Wis.2d 183
• Parties: Barbara Jeanne JOHN, Plaintiff in error-Petitioner, v. STATE of Wisconsin, Defendant in error.
• Court: Wisconsin Supreme Court

Page 502

291 N.W.2d 502

96 Wis.2d 183

Barbara Jeanne JOHN, Plaintiff in error-Petitioner, v. STATE of Wisconsin, Defendant in error.

No. 78-596-CR.

Supreme Court of Wisconsin.

Argued March 3, 1980.

Decided May 6, 1980.

Mark Lukoff (argued), First Asst. State Public Defender, Richard L. Cates, State Public Defender, on brief, for plaintiff in error-petitioner.

Kirbie Knutson (argued), Asst. Atty. Gen., Bronson C. La Follette, Atty. Gen., on brief, for defendant in error.

DAY, Justice.

Barbara J. John, the defendant, was found guilty after a trial to the court of welfare fraud. The complaint and information alleged that she received public assistance benefits while intentionally failing to report a change of circumstances affecting her eligibility for those benefits. She was charged with violations of sec. 49.12(1) and (9), Stats. (1977). ¹ The sole question presented to the Court of Appeals and now to this Court can be phrased as follows: Does the statute of limitations for the crime of failing to report a change in circumstances affecting a welfare recipient's eligibility for benefits begin to run upon the expiration of the grace period allowed for reporting a change in circumstances or does it commence only upon cessation of either the fraudulent conduct or the receipt of benefits? The Court of Appeals, 89 Wis.2d 214, 278 N.W.2d 214, held that the violation of sec. 49.12(9), Stats. was a continuing offense and that the offense continued each day the defendant failed to report changed circumstances and continued to accept aid based on the prior circumstances. We agree and affirm.

The defendant applied to the Milwaukee County Department of Public Welfare for aid to families with dependent children (AFDC) on March 7, 1969. She reported that she had four children living with her at the time of the application. The benefits to be received by her were calculated on that basis. Every six months thereafter "review forms" were filled out by the defendant. These review forms, which were signed by the defendant and filed with the Department of Public Welfare, were used to update the eligibility status of each recipient of aid. The form also contained a statement which informed the defendant of her duty to report any change in family income or conditions. These forms were on file for the years 1970 to 1977.

The initial application for aid submitted by the defendant and each review form filled out thereafter listed the defendant's only daughter as a member of her household. The defendant's three sons were also listed as members of the same household, and their status has not been questioned. The complaint and information alleged that the defendant's daughter began living with her grandmother outside the defendant's household sometime in 1970. Criminal prosecution of the defendant was not instituted until March, 1978. The complaint and information covered the period from April 1, 1972 through June 30, 1977. Between these dates, the defendant was alleged to have received $22,631.97 in AFDC payments with only three children actually living in her household. She was entitled to $18,977.97. Overpayment in the amount of $3,654.00 was alleged to have been fraudulently obtained.

The trial court did not make a specific finding as to the date the child moved out of the defendant's household, but stated that for the period of time charged in the information, the daughter lived with her grandmother or her father. Both parties on appeal agree that the child moved out of the defendant's household in 1970 and testimony to that effect was adduced at trial.

The defendant was placed on probation for three years and was ordered to pay restitution.

Sec. 49.12(9), Stats. incorporates the penalty provisions of sec. 49.12(1), Stats. Sec. 49.12(1), Stats. provides for increasing penalties depending on the amount of assistance unlawfully secured. Because the assistance obtained in this case exceeded $2,500., the defendant was charged with a felony. Sec. 939.74(1), Stats. (1977) requires that a felony prosecution be commenced within six years after "the commission thereof." As defined in the statute a prosecution is commenced "when a warrant or summons is issued, an indictment is found, or an information is filed."

We consider only whether sec. 49.12(9), Stats. is a continuing offense. The public defender asserted in his brief in the Court of Appeals that only a violation of sec. 49.12(9), Stats. was properly charged in the information and complaint and that a conviction premised on sec. 49.12(1), Stats. would violate due process. We do not determine the substantive effect of sec. 49.12(1), Stats. or the applicability of the continuing offense doctrine to that section. After reviewing the record, it is our conclusion that this case was prosecuted on the theory that the substantive violation of the statutes by the defendant was found in sec. 49.12(9), Stats. ² Because we conclude that the defendant could be charged in 1978 with a violation of sec. 49.12(9), Stats., we need not address the applicability of sec. 49.12(1), Stats. to these facts.

The defendant argues that her failure to report a change in the status of her household was a completed crime in 1970. If this is so, the six year statute of limitations for felony prosecutions would act as a bar to the prosecution of this case in 1978. She reasons that when her daughter moved out of the household, it became her duty to report that fact as a change of circumstances within seven days thereafter. ³ At the expiration of the statutory grace period, all the elements of the offense occurred simultaneously and the statute of limitations commenced on that date. Her crime, it is argued, like the majority of criminal activity, was instantaneous. That is, it was a crime in which all the elements necessary for its completion occur within a relatively short period of time and the criminal objective is speedily obtained.

In contrast to the instantaneous nature of most crimes, a continuing offense is one which consists of a course of conduct enduring over an extended period of time. Note, Statute of Limitations in Criminal Law: A Penetrable Barrier To Prosecution, 102 Pa.L.Rev. 630, 641-642 (1954). Even if the initial unlawful act may itself embody all of the elements of the crime, the criminal limitations period commences from the most recent act. Id. at 642. Stated another way, the statute of limitations for a continuing offense does not begin to run until the last act is done which viewed by itself is a crime. Duncan v. State, 282 Md. 385, 388, 384 A.2d 456 (1978). Often a continuing offense may be distinguished by a duty to perform an act which the defendant fails to do. Duncan v. State, 282 Md. at 390, 384 A.2d 456.

The question whether a particular criminal offense is continuing in nature is primarily one of statutory interpretation. Toussie v. United States, 397 U.S. 112, 125, 90 S.Ct. 858, 865, 25 L.Ed.2d 156 (1970), (White, J., dissenting); United States v. Cores, 356 U.S. 405, 408-409, 78 S.Ct. 875, 877-878, 2 L.Ed.2d 873 (1958). The continuing offense doctrine is well established, and has been applied to encompass a wide variety of criminal activity including embezzlement, see State v. Thang, 188 Minn. 224, 246 N.W. 891 (1933); conspiracy, see United States v. Kissel, 218 U.S. 601, 31 S.Ct. 124, 54 L.Ed. 1168 (1910); repeated failure to file reports, see, Hanf v. United States, 235 F.2d 710, 715 (8th Cir.), cert. denied, 352 U.S. 880, 77 S.Ct. 102, 1 L.Ed.2d 81 (1956); failure to report for induction, United States v. Robinson, 485 F.2d 1157 (3d. Cir. 1973); theft by receiving, State v. Reeves, 574 S.W.2d 647 (Ark.1978), cert. denied, 441 U.S. 964, 99 S.Ct. 2412, 60 L.Ed.2d 1069 (1979), and the failure to make and keep records of controlled substances, People v. Griffiths, 67 Ill.App.3d 16, 23 Ill.Dec. 734, 384 N.E.2d 528 (1978), as well as others. ⁴

In Toussie v. United States, 397 U.S. 112, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970), it was held that a federal statute providing for the failure to register for the draft did not create a continuing offense. The Supreme Court recognized that it had in prior decisions applied the continuing offense doctrine in situations where the legislative purpose to create such an offense was clear. ⁵ The Supreme Court proposed the following criteria for determining whether the particular statute before the court creates a continuing offense.

"These considerations do not mean that a particular offense should never be construed as a continuing one. They do, however, require that such a result should not be reached unless the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that . . . (the legislature) must assuredly have intended that it be treated as a continuing one." Toussie v. United States, 397 U.S. at 115, 90 S.Ct. at 860.

We believe that this analysis is the proper one to be followed in the present case.

We must first look to the terms the legislature used in defining the offense in question. The precise language of the reporting provision of sec. 49.12(9), Stats. states in part: "If any person obtains . . . assistance . . . on the basis of facts stated to the authorities charged with the responsibility of furnishing assistance and fails to notify said authorities within ten days of any change in the facts as originally stated and continues to receive assistance . . . such failure to notify shall be considered a fraud . . . ." The statute by its very language contemplates that the crime is a continuing one. The failure to report a change in circumstances is but one element of the crime. The continued receipt of public assistance is another necessary element that must be established before criminal liability may be imposed. The crime continues until the unlawful receipt of assistance terminates or the change in family circumstances is reported.

The...