Martin v. Superior Court In and For Yuma County, 16322-SA
| Decision Date | 17 February 1983 |
| Docket Number | No. 16322-SA,16322-SA |
| Citation | 135 Ariz. 99,659 P.2d 652 |
| Parties | Frederick A. MARTIN, Petitioner, v. The SUPERIOR COURT of the State of Arizona In and For the COUNTY OF YUMA and the Honorable Douglas W. Keddie, judge thereof, real party in interest, Respondents. |
| Court | Arizona Supreme Court |
Barry H. Hart and Kenneth D. Freedman, Phoenix, for petitioner.
David S. Ellsworth, Yuma County Atty. by Frank Dawley, Yuma, for respondents.
On September 2, 1982, the Yuma County Grand Jury indicted petitioner on one count of sexual assault, A.R.S. § 13-1406, and six counts of lewd and lascivious acts, former A.R.S. § 13-652. The six counts of lewd and lascivious acts were allegedly committed before October 1, 1978, the effective date of the new criminal code. * The sexual assault was allegedly committed on May 8, 1982. Count one named the victim; counts two through seven used the victim's first name and substituted "Doe" as the last name.
Before trial, petitioner moved for an order to quash the indictment contending that the applicable statute of limitations had expired and that counts two through seven were constitutionally defective because the victims' last names were disguised. Petitioner also moved to sever counts two through seven, the lewd and lascivious charges, from count one. The trial court dismissed count seven of the indictment, but denied the motion to sever.
Petitioner brought this special action on the grounds that the trial court abused its discretion in denying petitioner's motion to quash the indictment and to sever the counts. We accepted jurisdiction of the petition and issued an order staying further proceedings in counts two through six of the indictment (Yuma County Superior Court Criminal Action No. 11378). We further ordered the Superior Court to proceed to trial on count one of the indictment, opinion to follow. We have jurisdiction pursuant to 17A A.R.S. Special Actions, Rules of Proc., rule 8 and Ariz. Const. art. 6, § 5.
The question presented is one of statutory construction. Former A.R.S. § 13-106, in effect at the time counts two through six were allegedly committed, prescribed a five-year time limitation for the commencement of a prosecution of a felony. The present statute of limitations for felonies, A.R.S. § 13-107(B)(1), is seven years. Petitioner's indictment was filed more than five years but less than seven years from the dates of the crimes. Petitioner contends that the state is barred from bringing the charges described in counts two through seven of the indictment because the governing statute of limitations period of five years, former A.R.S. § 13-106, had expired before the indictment was filed. The state responds that present A.R.S. § 13-107 extended the statute of limitations from five to seven years for all offenses occurring before October 1, 1978, and for which the five-year statute of limitations had not run as of that date.
We first look to see if the Arizona Legislature has spoken to this issue. Section 179 of Chapter 142 of the 1977 Session Laws which enacted the new criminal code provides in part:
It is clear that the legislature has directed that the new criminal code shall only operate prospectively. State v. Seip, 128 Ariz. 56, 623 P.2d 845 (App.1980).
The state argues that section 179 does not apply because the statute of limitations is purely procedural and is not a defense on the merits. We find this argument...
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