State v. Francois

• Decision Date: 22 April 1998
• Docket Number: No. 97-880,97-880
• Citation: 577 N.W.2d 417
• Parties: STATE of Iowa, Appellant, v. Marla Kay FRANCOIS, Appellee.
• Court: Iowa Supreme Court

Page 417

577 N.W.2d 417

STATE of Iowa, Appellant, v. Marla Kay FRANCOIS, Appellee.

No. 97-880.

Supreme Court of Iowa.

April 22, 1998.

Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, Thomas S. Mullin, County Attorney, and Rhoda Ganzel, Assistant County Attorney, for appellant.

Frank Cosgrove, Sioux City, for appellee.

Considered by HARRIS, P.J., and LARSON, CARTER, NEUMAN, and TERNUS, JJ.

TERNUS, Justice.

The sole question presented on this appeal is whether the crime of absence from custody is a continuing offense for purposes of tolling the statute of limitations. See Iowa Code §§ 719.4(3) (absence from custody), 802.7 (effect of continuing offense on statute of limitations) (1995). Because we hold that this crime is a continuing offense, we conclude the district court erred in dismissing the trial information on statute-of-limitations grounds. Therefore, we reverse and remand for further proceedings.

I. Background Facts and Proceedings.

On August 2, 1988, the Iowa District Court for Woodbury County held the defendant, Marla Kay Francois, in contempt of court for violating her probation in connection with a false-use-of-a-financial-instrument charge. See Iowa Code § 908.11 (contempt statute). The court sentenced Francois to fourteen days in the Woodbury County jail, but withheld mittimus until 9:00 a.m. on September 16, 1988. Francois failed to present herself on that date.

On November 5, 1996, Francois was finally arrested and taken into custody. Three days later, the State charged her with the crime of absence from custody under Iowa Code section 719.4(3). Francois moved to dismiss the trial information on the ground that prosecution was barred by the applicable three-year statute of limitations. See Iowa Code § 802.3. The State resisted, contending that absence from custody is a continuing offense under Iowa Code section 802.7. The trial court rejected the State's argument and dismissed the trial information. The State appeals.

II. Scope of Review.

We review the trial court's interpretation of statutes for errors of law. See State v. Hippler, 545 N.W.2d 568, 570 (Iowa 1996); State v. Bond, 493 N.W.2d 826, 828 (Iowa 1992). We are not bound by the trial court's legal determinations. See Bond, 493 N.W.2d at 828.

III. Is the Crime of Absence from Custody a Continuing Offense?

Generally, the State must prosecute an indictable serious misdemeanor within three years after its commission. See Iowa Code § 802.3. When, however, "an offense is based on a series of acts committed at different times, the period of limitation ... commence[s] upon the commission of the last of such acts." Id. § 802.7. Section 802.7 has the effect of tolling the statute of limitations for continuing offenses until the last act constituting the offense is committed.

Whether the crime of absence from custody is a continuing offense under section 802.7 is a question of first impression in Iowa. We have previously determined that

a particular offense should not be construed as a continuing one "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."

State v. Harrison, 561 N.W.2d 28, 29 (Iowa 1997) (quoting Toussie v. United States, 397 U.S. 112, 115, 90 S.Ct. 858, 860, 25 L.Ed.2d 156, 161 (1970)). This test is strictly applied in order to limit the circumstances under which the continuing offense doctrine is utilized. See id. The continuing offense doctrine is limited in its application in deference to the rule that "criminal limitations statutes are to be liberally interpreted in favor of repose." Id.

With these principles in mind, we now turn to an examination of the language of section 719.4(3) and the nature of the crime defined in that statute. If either the language of the statute or the nature of the crime shows a legislative intent that the crime of absence from custody be considered a continuing offense, then we will so interpret the statute for purposes of the limitations period.

A. Language of statute. Section 719.4(3) makes it a crime to be absent from custody:

A person who has been committed to an institution under the control of the Iowa department of corrections, to a community-based correctional facility, or to a jail or correctional institution, who knowingly and voluntarily is absent from a place where the person is required to be, commits a serious misdemeanor.

Iowa Code § 719.4(3) (emphasis added); see also Webster's Third New International Dictionary 1197 (unabr. ed.1993) (stating the word "is" is a form of the infinitive "to be"). The state of "being absent" is not limited to a one-time occurrence, but rather indicates an ongoing condition.

We have had the opportunity to interpret a different criminal statute subject to a similar interpretation in Hippler. In that case, the court considered whether the crime of theft by one who "[e]xercises control over stolen property" was a continuing offense. Hippler, 545 N.W.2d at 571 (quoting Iowa Code § 714.1(4) (1993)). Even though the quoted language could reasonably be interpreted as describing "a continuous, ongoing felonious act," namely, exercising control over stolen property, we concluded the language of the statute did not compel a conclusion that this crime should be construed as a continuing one. Id. at 571-72. We explained, "Our theft statute does not expressly state that the possession or exercising control alternative of the theft statute is a continuing offense." Id. at 572 (emphasis added). Likewise, section 719.4(3) does not "expressly state" that absence from custody is a continuing offense.

The State points out, however, that the legislative history of section 719.4(3) shows the legislature's intent to make the offense of absence from custody a continuing one. See In re Property Seized on Jan. 31, 1983, 362 N.W.2d 565, 570 (Iowa 1985) (allowing consideration of legislative amendments to guide statutory interpretation). The predecessor statute to section 719.4(3) defined the crime as follows:

A person who has been committed to an institution under the control of the Iowa department of corrections, or to a jail or correctional institution, who knowingly and voluntarily leaves a place where the person is required to be, commits a serious misdemeanor.

Iowa Code § 719.4(3) (1985) (emphasis added). As a comparison of the former and current versions of section 719.4(3) reveals the legislature amended the statute in 1986 to substitute the phrase "is absent from" in place of the word "leaves." See 1986 Iowa Acts ch. 1238, § 30. The word "leave" is defined as "to go away or depart from." See Webster's Third New International Dictionary 1287.

The State contends this amendment changed the crime from a solitary act, leaving, to a continuing offense, the state of being absent. This argument has some facial appeal. But when the 1986 amendment is viewed in the context of the entire legislative history of this statute, it becomes apparent that the amendment does not demonstrate a legislative intent to change the nature of the crime.

When the new criminal code was enacted in 1976, the escape statute was completely rewritten. See State v. Burtlow, 299 N.W.2d 665, 668 (Iowa 1980); 1976 Iowa Acts ch. 1245, § 1904 (codified at Iowa Code § 719.4 (1979)). At that time section 719.4(3) applied to a person "who knowingly and voluntarily absents himself or herself from any place where the person is required to be...." Iowa Code § 719.4(3) (1979) (emphasis added). This language remained unchanged until the 1985 Code when, for an unexplained reason, section 719.4(3) was changed to read, "who knowingly and voluntarily leaves a place where the person is required to be...." Iowa Code § 719.4(3) (1985). The following year the legislature amended the statute to replace the word "leaves" with the phrase "is absent from." See 1986 Iowa Acts ch. 1238, § 30. The act in which this amendment was included bore the heading "Code and Reorganization Corrections." Id. (emphasis added). The session laws state that the act relates "to Code corrections which adjust and correct earlier omissions and inaccuracies, remove inconsistencies, and reflect or alter current practices, and providing penalties." Id. Although the act did not return section 719.4(3) to its earlier form ("absents"), there is nothing in the act which indicates the amendments embodied in the act were intended to alter current law. Based on this legislative history, we conclude an error was made by the 1985 Code editor and the amendment in 1986 changing the language of the statute was merely intended to correct this error.

We think the language of the statute, even when considered in light of the 1986 amendment, does not "compel[ ] ... a conclusion" that the crime of absence from custody is a continuing offense. See Harrison, 561 N.W.2d at 29. That does not end our inquiry, however, because the nature of the offense may support a conclusion that the crime is a continuing one. See id. Therefore, we turn to a consideration of that factor.

B. Nature of the offense. The crime of absence from custody is found in the statutory provision defining escape and related crimes. ¹ See Burtlow, 299 N.W.2d at 668-69. Before the enactment of section 719.4 in 1976, the crime of escape was defined generally and was not broken down into separate offenses as it is now. See id. A review of our interpretation of this prior general escape statute is instructive on the issue before us. In State v. Reese, 272 N.W.2d 863, 866-67 (Iowa 1978), this court adopted a necessity defense to an escape charge. As one of the conditions of this defense, an escapee must " 'immediately report[ ] to the proper authorities when he has attained a position of safety from the immediate threat.' " Reese, 272 N.W.2d at 866 (quoting People v. Lovercamp, 43...