State v. Bryce, 7113-4-II

• Decision Date: 17 September 1985
• Docket Number: No. 7113-4-II,7113-4-II
• Citation: 41 Wn.App. 802,707 P.2d 694
• Parties: The STATE of Washington, Appellant, v. Mary Emma BRYCE and Wolfe Warshall Bryce, Respondents.
• Court: Washington Court of Appeals

Page 802

41 Wn.App. 802

707 P.2d 694

The STATE of Washington, Appellant, v. Mary Emma BRYCE and Wolfe Warshall Bryce, Respondents.

No. 7113-4-II.

Court of Appeals of Washington,

Division 2.

Sept. 17, 1985.

Robin M. Force, Deputy Pros. Atty., Kelso, for appellant.

Ellsworth I. Connelly, Herrmann, Levenson, Margullis and Ray, Tacoma, for respondents.

ALEXANDER, Judge.

The State appeals the trial court's dismissal of an information charging Mary E. Bryce and Wolfe W. Bryce with a violation of the welfare fraud statute, RCW 74.08.331. The basic issue is whether the State may be permitted to amend its information to set forth an amount of public assistance allegedly unlawfully obtained, to bring the charge within the applicable statute of limitations. We agree with the trial court that amendment was not proper in this case and, accordingly, affirm.

On November 30, 1982, the Bryces were charged with "welfare fraud" under RCW 74.08.331 ¹ arising from events occurring between November 30 and December 30, 1979. The information recited verbatim the language of RCW 74.08.331 without identifying any amount of public assistance allegedly unlawfully obtained. ² In April 1983, the Bryces moved to dismiss the information, on constitutional grounds and under RCW 10.40.110, for failure to state a crime because the information did not allege the amount of assistance unlawfully obtained. In the alternative, they contended that if the information stated a crime, the action was barred by the two-year statute of limitations applicable to gross misdemeanor thefts. RCW 9A.04.080.

In response to the Bryces' motion to dismiss, the State, at the hearing on the motion, orally sought to amend its information to allege an amount over $250, a felony under the theft statute. The statute of limitations for felony theft is three years. RCW 9A.04.080. The trial court dismissed the information, finding, under alternative grounds, that amendment was not proper. The trial court concluded that the information either failed to state a crime or even if it stated a crime, it stated gross misdemeanor theft, which was barred from prosecution by the statute of limitations and not subject to amendment. We need address only the latter ground for dismissal to resolve this appeal.

The State concedes that the statute of limitations had run on a gross misdemeanor charge at the time of filing the information. However, it contends that the information, stated in the language of RCW 74.08.331, charged a felony within the limitations period; the amendment merely made this more definite. Characterizing a violation of RCW 74.08.331 as a crime of "welfare fraud," the State contends that since RCW 74.08.331 does not contain any reference to a dollar amount, the amount of overpayment is not an element of the offense necessary to a conviction. The State further asserts that State v. Sass, supra, indicates only that the penalty portion of RCW 74.08.331 was repealed, thereby making the amount of the assistance unlawfully obtained relevant, after conviction, in order to determine the appropriate penalty and sentence commensurate with the theft provisions. The State maintains that Sass did not incorporate the dollar amounts applicable under the theft statute as an element of "welfare fraud." Thus, the State reasons that omission of the amount of overpayment merely renders the information vague subject to amendment, in the absence of any prejudice shown by the Bryces. We do not agree.

We recognize the apparent confusion brought about by the enactment of RCW 9A.56.100 and the Legislature's failure to expressly amend RCW 74.08.331. However, we do not read State v. Sass, supra, as supporting the State's contentions. The State's characterization of a violation of RCW 74.08.331 as a "crime of welfare fraud" is misplaced. It obscures the effect brought about by RCW 9A.56.100. Sass held that RCW 9A.56.100 abolished the crime of grand larceny, identified in RCW 74.08.331, and substituted instead the crime of theft. Sass further held that the classification system employed under the theft statutes, RCW Chapter 9A.56, which defines the crime, based on the amount wrongfully obtained, is incorporated into and applies to the welfare fraud statute. ³ Sass, 94 Wash.2d at 724, 620 P.2d 79.

RCW 9A.56.100, therefore, significantly altered the nature and scope of RCW 74.08.331. Sass, contrary to the State's assertions, did not merely determine that the penalty portion of RCW 74.08.331 was repealed by implication. Sass established, as discussed, that the very nature of the offense was altered. A violation of RCW 74.08.331 now constitutes a particular degree of theft, depending upon the amount of overpayment wrongfully received. State v. Sass, supra; see also State v. Wallace, 97 Wash.2d 846, 849, 651 P.2d 201 (1982). In turn, the identity of the degree of the offense under the theft statutes dictates the appropriate penalty. Sass accordingly also recognized that the penalty portion of RCW 74.08.331 was repealed by implication.

Thus, the language of RCW 74.08.331 does not completely define all of the elements of the offense. It merely states one element--the methods in which this particular type of theft regarding public assistance entitlement can be committed. The second element of this theft crime is the amount of overpayment of public assistance. State v. Sass, supra; State v. Brisebois, 39 Wash.App. 156, 161, 692 P.2d 842 (1984). This element is essential. It identifies the offense and must be charged.

Because the amount of overpayment of public assistance is an element of this theft crime, we agree with the trial court that since the information did not allege any amount unlawfully obtained, it stated only theft in the third degree, a gross misdemeanor (see Mooney v. Cranor 38 Wash.2d 881, 884, 233 P.2d 850 (1951); Sorenson v. Smith, 34 Wash.2d 659, 209 P.2d 479 (1949) ), prosecution of which was barred because the applicable two-year limitation period had run before filing of the original information. The amended information charging a felony also was beyond the applicable three-year limitation period for felony theft. The trial court denied the State's motion to amend, finding that it lacked subject matter jurisdiction over the original information, and that the second information, which attempted to broaden the original charges, was improper. This reasoning is consistent with our holding in State v. Glover, 25 Wash.App. 58, 604 P.2d 1015 (1979). ⁴

In Glover, as here, the State attempted to file an amendment, which itself was beyond the statute of limitations, to an original information which also charged a crime beyond the limitations period. In addition, the amendment sought, as here, to broaden the charges from a gross misdemeanor to a felony. To save the amendment from dismissal, the State argued that it should "relate back" to the date of filing of the original information. We disagreed, holding that an original information which is not timely filed is not subject to amendment. We reasoned that because a criminal statute of limitation is jurisdictional, an information which charges a crime beyond the statute of limitations is void on its face, and therefore, there is nothing to which an amendment can relate back. Glover, 25 Wash.App. at 61, 604 P.2d 1015; see also State v. Eppens, 30 Wash.App. 119, 123, 633 P.2d 92 (1981).

The instant case falls squarely within State v. Glover, supra. The State cannot rely on the relation back doctrine to save an untimely amendment where the original information charged a crime beyond the statute of limitations. The trial court properly denied the State's motion to amend.

We affirm the order of dismissal.

PETRICH, J., concurs.

REED, Acting Chief Justice, Dissenting.

I dissent. In my view State v. Sass, 94 Wash.2d 721, 620 P.2d 79 (1980), was wrongly decided and, in any event, has been given an inappropriately expansive reading by the majority.

RCW 74.08.331 defines the crime of welfare fraud and provides that one violating its provisions "shall be guilty of grand larceny and upon conviction thereof shall be punished by imprisonment in the state penitentiary for not more than fifteen years." In Sass, after carefully stating at 722, 670 P.2d 79 that "the sole question is what is the appropriate penalty," the court held that the Washington Criminal Code of 1976 (Title 9A RCW) repealed "by implication the portion of [RCW 74.08.331] establishing the welfare fraud penalty" and substituted in its stead the penalties of first, second or third degree theft, depending on the monetary amount involved. State v. Sass, 94 Wash.2d at 726, 620 P.2d 79.

Welfare fraud was deemed in Sass to be a particular degree of theft because (1) the criminal code applies to offenses "defined in this title or the general statutes unless otherwise expressly provided ..." RCW 9A.04.010(2), (2) the code requires that "larcenies outside of this title ... be treated as thefts as provided in this title," RCW 9A.56.100, and (3) the "rule of lenity" prevents an increase in a penalty absent clear evidence such was intended by the Legislature. I submit this rationale is incorrect.

The criminal code, expressly does not apply to crimes defined outside its provisions, if "the context otherwise requires." RCW 9A.04.010(2). Because the "context" of the welfare fraud statute requires otherwise, one does not even reach the code's later direction (RCW 9A.56.100) that larcenies be "treated as thefts." In my view, the Supreme Court completely ignored this prefatory proviso that limited the operation of the act so as to clearly exclude welfare fraud.

To begin with, welfare fraud is not a "particular degree of theft," (majority opinion, page 696) because the two crimes are committed in different ways--the elements are not the same, see State v. Holmes, 98 Wash.2d 590, 597, 657 P.2d 770 (1983), and evidence that could sustain one charge would not necessarily suffice...