State v. O'Neill

• Decision Date: 01 August 1990
• Docket Number: No. 17547,17547
• Citation: 118 Idaho 244,796 P.2d 121
• Parties: STATE of Idaho, Plaintiff/Respondent, v. James Francis O'NEILL, Defendant/Appellant.
• Court: Idaho Supreme Court

Page 121

796 P.2d 121

118 Idaho 244

STATE of Idaho, Plaintiff/Respondent, v. James Francis O'NEILL, Defendant/Appellant.

No. 17547.

Supreme Court of Idaho.

Aug. 1, 1990.

Tway & Rosenheim, Boise, for defendant/appellant. Gustav A. Rosenheim argued.

Jim Jones, Atty. Gen., and Myrna A.I. Stahman, Deputy Atty. Gen., Boise, for plaintiff/respondent. Myrna A.I. Stahman argued.

McDEVITT, Justice.

On December 21, 1987, a Complaint was filed by the Ada County prosecutor charging O'Neill with two counts of lewd conduct with a minor which allegedly occurred between January and June 1983, in violation of I.C. § 18-1508. Following a preliminary hearing, O'Neill was bound over on both counts by the magistrate.

On January 25, 1988, O'Neill entered a plea of guilty to sexual abuse of a minor. The court ordered a presentence report and scheduled sentencing for February 29, 1988.

On February 5, 1988, an Amended Information was filed charging O'Neill with one count of sexual abuse of a minor in violation of I.C. § 18-1506.

On the scheduled sentencing date of February 29, 1988, the court informed all parties that based upon the presentence report, the plea agreement entered into between the state and O'Neill was unacceptable. O'Neill was allowed to withdraw his guilty plea and, on the Amended Complaint, trial was scheduled for March 7, 1988.

On March 7, 1988, the day scheduled for trial of this matter, counsel for O'Neill presented to the court an oral motion to dismiss on the basis that the statute of limitations for the offense charged had run, asserting that the offense for which O'Neill stood charged had occurred between January and June of 1983, and that at that time the statute of limitations for the offense charged was three years. The statute of limitations (I.C. § 19-402) had been amended by the Idaho State Legislature in 1985, providing for a five year statute of limitations. O'Neill argued that the statute of limitations in effect at the time of the commission of the acts for which he was charged was the controlling statute.

Thereafter, O'Neill filed a written motion to dismiss based on the statute of limitations, which was heard April 1, 1988. The district court denied O'Neill's motion to dismiss, as well as a subsequent motion for reconsideration.

On June 1, 1988, O'Neill, pursuant to Rule 11(a)(2) of the Idaho Rules of Criminal Procedure, entered a conditional guilty plea which was accepted by the trial judge in open court on June 2, 1988. The court entered a judgment of conviction, imposed a fixed five year sentence, suspended the sentence, and put O'Neill on probation.

O'Neill appeals from this judgment.

I. ISSUES PRESENTED AND STANDARD OF REVIEW

The issue raised by O'Neill on appeal is whether his prosecution was barred by the provisions of I.C. § 19-402, in force at the time of the commission of the acts for which he was convicted, although subsequently amended. As this is a question of law only, we apply the standard of free review. Clark v. St. Paul Property & Liability Ins. Co., 102 Idaho 756, 639 P.2d 454 (1981); Harding v. Home Investment & Sav. Co., 49 Idaho 64, 286 P. 920 (1930). We are further asked to rule on the applicability of I.C. § 73-101 as to the amendment to the statute of limitations being applied to conduct occurring prior to the amendment. An additional issue has been raised on appeal by members of this Court, concerning the legality of the amendment of the Information on February 5, 1988, and the defendant being held for trial on that charge as stated in the Amended Information without a preliminary hearing pursuant to I.C. § 19-1308 and art. 1, § 8 of the Idaho Constitution, subsequent to

[118 Idaho 246] the amendment. The Court addresses this issue on its own initiative. State v. Lopez, 98 Idaho 581, 570 P.2d 259 (1977); State v. Mowrey, 91 Idaho 693, 429 P.2d 425 (1967).

II. THE STATUTE OF LIMITATIONS

O'Neill argues that the three year statute of limitations in effect at the time of the commission of the acts for which he was charged (January through June 1983) is the statute of limitations that must be applied, and that the subsequent amendment of the statute of limitations applicable to those acts charged is an ex post facto law and therefore violates art. 1, § 10 of the Constitution of the United States of America and art. 1, § 16 of the Constitution of the State of Idaho (see also art. 1, § 9, cl. 3 of the Constitution of the United States of America).

At the time O'Neill committed the acts for which he was charged, I.C. § 19-402 provided:

A prosecution for any other felony than murder must be commenced by the filing of the complaint or the finding of an indictment within three (3) years after its commission. (1972)

On March 22, 1985, the Idaho Legislature amended I.C. § 19-402 to become effective July 1, 1985, to read as follows:

A prosecution for any felony other than murder or any felony committed upon or against a minor child must be commenced by the filing of the complaint or the finding of an indictment within three (3) years after its commission. A prosecution for any felony committed upon or against a minor child must be commenced within five (5) years after the commission of the offense by the filing of the complaint or a finding of an indictment.

O'Neill was first charged by a complaint filed December 21, 1987.

Thus, the issue framed and presented is whether a statute of limitation may be extended prior to the expiration of the original statute of limitations without being violative of the ex post facto law provisions of the United States and Idaho Constitutions.

Judge Learned Hand dealt with this issue in 1928 and engaged in an extensive analysis in the case of Falter v. United States, 23 F.2d 420 (2d Cir.), cert. denied, 277 U.S. 590, 48 S.Ct. 528, 72 L.Ed. 1003 (1928), which involved an extension of a statute of limitations from three years to six years prior to the expiration of the original three year statute. Judge Hand found this extension permissible under the United States Constitution.

The United States Ninth Circuit Court of Appeals in 1959 also held that the extension of a statute of limitations prior to the expiration of the original statute was not an ex post facto law and was not unconstitutional. Clements v. United States, 266 F.2d 397 (9th Cir.), cert. denied, 359 U.S. 985, 79 S.Ct. 943, 3 L.Ed.2d 934 (1959). That Court held as follows:

It did not render a previously innocent act criminal. This statute did not aggravate or increase the punishment for the crimes here involved. The enactment did not alter the rules of evidence. An innocent act was not thereby penalized while assuming to regulate civil rights and penalties. Nor was the accused deprived thereby of some protection or defense previously available.

Clements v. United States, 266 F.2d at 399. See also, 2 N. Singer, Statutory Construction, § 42.06, at 456 (4th ed. 1986); People v. Lewis, 180 Cal.App.3d 816, 225 Cal.Rptr. 782 (4th Dist.1986); People v. Masry, 179 Cal.App.3d 1149, 225 Cal.Rptr. 174 (4th Dist.1986); People v. Holland, 708 P.2d 119 (Colo.1985); State v. Norton, 675 P.2d 577 (Utah 1983), cert. denied, 466 U.S. 942, 104 S.Ct. 1923, 80 L.Ed.2d 470 (1984); United States ex rel. Massarella v. Elrod, 682 F.2d 688, 689 (7th Cir.1982), cert. denied, 460 U.S. 1037, 103 S.Ct. 1426-427, 75 L.Ed.2d 787 (1983); Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977); Vasquez v. State, 557 S.W.2d 779, 781 n. 2 (Tex.Crim.App.1977); People v. Pfitzmayer, 72 Misc.2d 739, 740-42, 340 N.Y.S.2d 85, 86-88 (1972).

In State v. Hodgson, 108 Wash.2d 662, 740 P.2d 848 (1987), cert. denied, 485 U.S. 938, 108 S.Ct. 1117, 99 L.Ed.2d 277 (1988), the Washington Supreme Court engaged in an extensive analysis, and held:

As a general proposition, it may be stated that there is no such thing as a common law statute of limitation in criminal cases. Such statutes of limitation are matters of legislative grace; they are a surrendering by the sovereign of its right to prosecute. Since they are measures of public policy only, and subject to the will of the Legislature as such, they may be changed or repealed in any case where the right to a dismissal has not been absolutely acquired by the completion of the running of the statutory period of limitation.

This is not to say that a prosecution once barred by the running of the applicable statute of limitation can be revived by the Legislature; it cannot be. The classic explanation is that of Judge Learned Hand:

Certainly it is one thing to revive a prosecution already dead, and another to give it a longer lease of life. The question turns upon how much violence is done to our instinctive feelings of justice and fair play. For the state to assure a man that he has become safe from its pursuit, and thereafter to withdraw its assurance, seems to most of us unfair and dishonest. But, while the chase is on, it does not shock us to have it extended beyond the time first set, or, if it does, the stake forgives it.

Accordingly, "[u]ntil the statute has run it is a mere regulation of the remedy ... subject to legislative control. Afterwards it is a defense, not of grace, but of right, not contingent, but absolute and vested, ... not to be taken away by legislative enactment." In the cases before us, none of the offenses in question were time barred at the time the new statutes of limitation were enacted and became effective, therefore, each new statute became the one applicable. None of the prosecutions before us was time barred at the time they were commenced.

Thus, where a statute extends a period of limitation, or provides for the tolling thereof, it applies to offenses not barred at the effective date of the act, so that a prosecution may be commenced at any time within the newly established limitation period although the original period of limitation had by then expired.

Similarly, the legislative extensions of the statute of...