State v. Strand
| Decision Date | 14 November 1983 |
| Docket Number | No. 18542,18542 |
| Citation | 674 P.2d 109 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Jerry Verne STRAND, Defendant and Appellant. |
| Court | Utah Supreme Court |
Daniel L. Berman, Ross C. Anderson, Salt Lake City, for defendant and appellant.
David L. Wilkinson, Atty. Gen., Craig L. Barlow, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.
We granted defendant's petition to bring this interlocutory appeal from the denial of his motion to dismiss a criminal information on the ground that the applicable four year statute of limitations had run on the offense charged.
On August 24, 1981, an information (the August information) was filed against defendant charging him with making false material statements under oath on January 18, 1978 in violation of U.C.A., 1953, § 76-8-502(1). Preliminary hearing was scheduled for December 15, 1981. Trial was set for January 13, 1982, five days before the statute of limitations would have run but for the filing of the information. At the specific instance and request of defendant, arraignment was postponed until January 29, 1982, eleven days after the statute of limitations would have run but for the filing of the information. On that date defendant moved the court to dismiss the information against him on the ground that it was not signed by the prosecuting attorney as required under Utah law, and that the court was therefore without jurisdiction. The motion was taken under advisement and subsequently granted on February 24, 1982. No appeal was taken from that ruling.
On February 26 a new information (the February information) was filed charging the same violation, bearing the date of the offense, but stating no exception why the statute of limitations did not apply. Defendant moved to dismiss that information on the ground that it was fatally defective on its face and that prosecution of the offense was barred by the applicable four year statute of limitations. Section 76-1-302(1)(a). That motion was denied, and the petition for this interlocutory appeal was granted by this Court.
Defendant contends that the motion to dismiss should have been granted on the grounds (1) that the August information was void ab initio and thus did not toll the four year statute of limitations, and (2) that the February information was fatally defective and should have been summarily dismissed.
Under Utah law all criminal prosecutions U.C.A., 1953, § 77-35-5(a). See also § 76-1-302(2). Prosecution for felonies may not be commenced "unless the prosecuting attorney shall first authorize the filing of such information." Section 77-35-5(b); Section 77-2-1. The filing of an information commences the action and thus tolls the running of the applicable statute of limitations. See State, ex rel. Cannon v. Leary, Utah, 646 P.2d 727 (1982), citing Pennsylvania, Oklahoma and Federal Rules of Criminal Procedure as comparable to Utah's. Id. at 730, n. 13.
Nonetheless, defendant contends that the absence of the prosecuting attorney's signature rendered the August information null and void, so that in effect no prosecution was ever commenced at that time. Defendant cites us to State, ex rel. Cannon v. Leary, supra, where we concluded that the steps required to properly initiate prosecution were:
(1) screening of the case by the prosecutor;
(2) authorization of the prosecution evidenced by the signature of the prosecutor affixed to the information;
(3) presentment of the information to a magistrate;
(4) subscribing and swearing to the information by the complaining witness;
(5) filing of the information with the magistrate or the clerk of the court.
Inasmuch as no appeal was taken from the dismissal of the August information, the propriety of that dismissal is not before us and we express no opinion upon it. We address instead only the contention of the defendant that the information was void ab initio and that therefore the statute of limitations continued to run on the offense charged.
Defendant cites two cases from comparable jurisdictions in support of his argument that a document lacking the signature of a prosecuting attorney cannot be an information, Edwards v. State, Okl.Cir., 307 P.2d 872 (1957) and Com. v. Belcher, 258 Pa.Super. 153, 392 A.2d 730 (1978). Edwards dealt with two issues, the absence of a signature on an information and the insufficiency of that same information to charge the defendant with a crime. It is not clear from that case on what grounds it was reversed, as the court found it necessary to address the substance of the charge, and we decline to follow that case for those reasons. Com. v. Belcher, supra, on the other hand is directly on point. There an information with no signature at all by the district attorney was held to be void ab initio. However, that case was later expressly overruled by Com. v. Veneri, Pa.Super., 452 A.2d 784 (1982), and the holding of that case is dispositive here. Addressing the issue of whether the absence of a required signature renders an information void ab initio or merely voidable, the court at 788 stated as follows:
[W]e believe that Belcher is incorrect law and must be overruled. We instead hold that the signature requirement of Pa.R.Crim.P. 225(b) is directory only and that its absence renders an information merely voidable and curable by amendment if properly raised in a pretrial motion to quash. Pa.R.Crim.P. 306.
The court then advanced a two-fold rationale for its holding:
First, it is clear that the absence of a signature does not prejudice the defendant in his preparation for trial. Secondly, it is unrealistic to assume that Pa.R.Crim.P. 225(b) intended the signature of the attorney for the Commonwealth to be the exclusive deliberative act which charged the defendant and that its absence annuls the validity or integrity of an otherwise untainted prosecution process.
Id. That reasoning is supported by our own statutes as well as case law from other jurisdictions. Utah Rules Crim.Proc. 4(d) permits the amendment of an information "at any time before verdict if no additional or different offense is charged and the substantial rights of the defendant are not prejudiced." Rule 30 provides that "[a]ny error, defect, irregularity or variance which does not affect the substantial rights of a party shall be disregarded."
The State claims that Rule 12(f) of the Utah Rules of Criminal Procedure mandates the tolling of the statute of limitations in this case. That rule reads:
If the court grants a motion based on a defect in the institution of the prosecution or in the indictment or information, it may also order that bail be continued for a reasonable and specified time pending the filing of a new indictment or information. Nothing in this rule shall be deemed to affect provisions of law relating to a statute of limitations. (Emphasis added).
The last sentence of Rule 12(h) of the Federal Rules of Criminal Procedure, which is substantively identical to Utah's Rule 12(f), was clarified in the Notes of the Advisory Committee on Federal Rules of Criminal Procedure as follows:
The last sentence of the rule that "[n]othing in this rule shall be deemed to affect the provision of any Act of Congress relating to periods of limitations" is intended to preserve the provisions of statutes which permit a reindictment if the original indictment is found defective or is dismissed for other irregularities and the statute of limitations has run in the meantime. (Emphasis added).
As no express tolling statutes are involved here, that rule is not germane in resolving the issue to be decided by us.
The State also relies upon State v. Stewart, Vt., 438 A.2d 671 (1981) to support its contention that the statute of limitations was tolled by the filing of the information, although it was later dismissed. There, indictments made against the defendants by a grand jury were dismissed. A few days later the State issued an information recharging the defendants who then claimed that the statute of limitations had run because it had not been tolled by the defective indictments. The court held that the indictments, although invalid, served to toll the statute. It noted that the cases on the subject turn on the wording of the applicable statute of limitations. Said the court at 675:
In states in which the statute provides that the prosecution must be "commenced" within a certain period of time, the cases hold that the running of the statute is interrupted by the filing of an indictment or information and does not begin to run again unless and until the indictment is dismissed. E.g., Davenport v. State, 20 Okl.Cr. 253, 202 P. 18 (1921); Hickey v. State, 131 Tenn. 112, 174 S.W. 269 (1915).
The court noted that Vermont's statutes (like Utah's) were of that type and that because they did not expressly require the presentation of a valid indictment or information, the court would not impose that requirement. It relied on federal case law, including United States v. Grady, 544 F.2d 598 (2d Cir.1976) which held that indictments which are later dismissed do toll the statute because the defendants are put on timely notice that they will be called upon to account for their activities and should prepare a defense.
Defendant urges us to follow State v. Silver, 239 Or. 459, 398 P.2d 178 (1965), where the court arrived at a different conclusion, but likewise observed that "divergent results reached by different state jurisdictions rest on construction of statutes which determine when a prosecution is deemed commenced." Id. at 179. The court held that because Oregon had no express statute to the contrary, the filing of an indictment by a grand jury with the clerk of the court upon which no conviction or judgment can be had by reason...
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