Massey v. State

579 A.2d 265, 320 Md. 605, 1990 Md. LEXIS 145
Court of Appeals of Maryland·Decided September 20, 1990·No. 136, September Term, 1988·Published·Cited by 9 cases

Opinions

ELDRIDGE, Judge.

This criminal case presents the narrow issue of when the State must institute a prosecution for welfare perjury, a misdemeanor proscribed by Maryland Code (1957, 1985 Repl.Vol., 1989 Cum.Supp.), Art. 88A, § 62(a). More broadly, however, the case concerns the appropriate period of limitations for misdemeanor prosecutions generally.

The relevant facts are as follows. On September 9, 1987, the State filed a ten count criminal information against petitioner Denise Massey in the Circuit Court for Caroline County. Counts I through IV charged her with welfare perjury and were based on allegations that on four separate occasions, from May 1978 through July 1983, Massey made false statements in applications to obtain food stamps. She also was charged with welfare fraud (count V), theft (count VI), and medicaid fraud (counts VII through X), all based on the same acts underlying the welfare perjury charges.1

Massey filed a motion to dismiss the criminal information, asserting, inter alia, that the charges in counts I through V and VII through X were barred by Code (1974," 1989 Repl.Vol.), § 5-106 of the Courts and Judicial Proceedings Article. Section 5-106(a) reads as follows:

“Except as provided by this section, a prosecution for a misdemeanor not made punishable by confinement in the penitentiary by statute shall be instituted within one year after the offense was committed.”

[609] Subsection (g) of § 5-106 provides a three year limitations period for welfare fraud prosecutions, while subsection (h) provides the same period for medicaid fraud prosecutions. There is no specific provision concerning welfare perjury.

The trial court conducted a hearing on Massey’s motion, at which the State entered a nolle prosequi with regard to count V (welfare fraud). In a written order, the court granted the motion to dismiss as to counts I through IY (welfare perjury), but denied it as to counts VII through X (medicaid fraud). On the day a jury trial was scheduled, the State nol prossed all remaining counts. The State later filed a notice of appeal.

In an unreported opinion, the Court of Special Appeals reversed the order dismissing counts I through IV, holding that a prosecution for welfare perjury is not subject to any limitations period. The Court of Special Appeals pointed out that Art. 88A, § 62(a), defining the offense of welfare perjury, states that a person committing the offense “is guilty of perjury and upon conviction therefor is subject to the penalties provided by law for perjury.” The Court of Special Appeals then pointed out that, under Code (1957, 1987 Repl.Vol.), Art. 27, § 439, perjury is subject “to imprisonment in the jail or penitentiary for not more than ten years.” The intermediate appellate court concluded that, since one charged with welfare perjury “faces the possibility of confinement in the penitentiary,” the one year limitations period in § 5-106(a) of the Courts and Judicial Proceedings Article was inapplicable.

Massey filed a petition for a writ of certiorari, raising the issue of whether the State was entitled to benefit from an unlimited limitations period within which to charge her for welfare perjury, while allegedly greater offenses based on the same acts, namely welfare fraud and medicaid fraud, were subject to three year limitations periods under § 5-106. This Court granted her petition and directed the parties to brief and argue two additional questions: (1) whether a prosecution for welfare perjury is subject to the [610] one year statute of limitations in § 5-106(a); and (2) what is the meaning of the phrase “not made punishable by confinement in the penitentiary by statute,” contained in § 5-106(a), in light of Code (1957, 1987 Repl.Vol., 1989 Supp.), Art. 27, § 690? Our answers to the latter questions are dispositive,- and thus we need not address the issue raised in the certiorari petition.

At common law, there was no general period of limitations applicable to criminal proceedings. 1 Chitty, A Practical Treatise On The Criminal Law 160 (1819); Hochheimer, The Law Of Crimes And Criminal Procedure 78 (2d Ed.1904). In Maryland, many criminal offenses are subject to specific limitations periods by statute. See, e.g., Code (1974, 1989 Repl.Vol.), §§ 5-106(b)(l) of the Courts and Judicial Proceedings Article (two year limitations period for prosecutions under the vehicle code for unlawfully using a driver's license), 5-106(e)(3) (two year limitations period for criminal malfeasance, misfeasance, or nonfeasance in office by State officers), and 5-106(g) (three year limitations period for welfare fraud).-

In the absence of a specific statutory limitations period for a particular offense, the State may institute a prosecution for a felony at any time. Greco v. State, 307 Md. 470, 478, 515 A.2d 220, 224 (1986).

As to misdemeanors, the General Assembly over one hundred years ago mandated: “No prosecution ... shall be commenced for ... any misdemeanor except those punished by confinement in the penitentiary, unless within one year from the time of the offence committed.” Code (1860), Art. 57, § 10. At that time, and for many years thereafter, it was common for criminal statutes to designate not only the length of incarceration for a criminal conviction but also the place where the defendant would serve the sentence. Trial judges would sentence convicted defendants to the particular institutions in accordance with the statutory authorization. Presumably, what the Legislature considered to be the most serious misdemeanors were made punishable by [611] confinement in the state penitentiary. Sentences for misdemeanors apparently deemed less serious were by statute to be served in the county jails or state institutions' such as the house of correction.2 Under this framework, in the absence of a specific statute of limitations for a particular offense, the State had an unlimited time in which to institute a prosecution for what were considered “penitentiary misdemeanors,” while other misdemeanors were generally subject to a one year limitations period.

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Massey v. State, 579 A.2d 265, 320 Md. 605, 1990 Md. LEXIS 145 (Md. 1990).

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