State v. Hirsch

510 N.W.2d 534, 1 Neb. Ct. App. 1120, 1993 Neb. App. LEXIS 346
CourtNebraska Court of Appeals
DecidedAugust 10, 1993
DocketNo. A-92-611
StatusPublished

This text of 510 N.W.2d 534 (State v. Hirsch) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hirsch, 510 N.W.2d 534, 1 Neb. Ct. App. 1120, 1993 Neb. App. LEXIS 346 (Neb. Ct. App. 1993).

Opinion

Connolly, Judge.

This appeal arises from the conviction of the appellant, Daniel Orlin Kirsch, Sr., for first degree sexual assault on a child. The trial court overruled Hirsch’s demurrer alleging that the prosecution was barred by the applicable statute of limitations. We reverse in part, and in part vacate and remand with directions.

[1121]*1121FACTS

On February 27,1991, the State filed an information directly in district court charging Hirsch with first degree sexual assault on a child, pursuant to Neb. Rev. Stat. § 28-319(l)(c) (Reissue 1989). The information alleged that Hirsch had sexually assaulted his daughter on or about August 25 through December 31, 1986, during which time period the statute of limitations in effect for first degree sexual assault was 3 years. See Neb. Rev. Stat. § 29-110 (Reissue 1985). Hirsch filed a demurrer pursuant to Neb. Rev. Stat. § 29-1810 (Reissue 1989) on grounds that the prosecution was “barred by the provisions of Section 29-110 of the Nebraska Statutes as Revised.” The demurrer was overruled, Hirsch pled not guilty, and the case was tried to a jury. Hirsch was found guilty as charged and was sentenced to a prison term of 5 to 7 years.

ASSIGNMENTS OF ERROR

We reach only one of Hirsch’s assignments of error, as it is dispositive of this appeal. Hirsch argues that the trial court erred in overruling the demurrer and taking jurisdiction of the case, because the applicable statute of limitations had run.

STANDARD OF REVIEW

When a jurisdictional question does not involve a factual dispute, determination of the jurisdictional question is a matter of law. Williams v. Gould, Inc., 232 Neb. 862, 443 N.W.2d 577 (1989). Statutory interpretation is a matter of law on which an appellate court must reach a conclusion independent of that of the trial court. In re Estate of Watkins, 243 Neb. 583, 501 N.W.2d 292 (1993).

ANALYSIS

At the time Hirsch allegedly committed the sexual assault, from August 25 through December 31, 1986, the crime of first degree sexual assault was subject to a 3-year statute of limitations period. See § 29-110 (Reissue 1985). In 1989, the Nebraska Legislature amended § 29-110 and changed the limitations period for first degree sexual assault to 5 years. See § 29-110 (Reissue 1989). The 5-year limitations period became effective August 25, 1989. There was no language in the [1122]*1122amended version of § 29-110 indicating that the 5-year limitations period should be applied retroactively.

The question presented is whether the enactment of the 5-year limitations period in 1989 effectively extended the statute of limitations for sexual assaults committed before the 5-year limitations period took effect. We have not found Nebraska case law directly on point. Some jurisdictions have found that despite the absence of language calling for retroactive application, an amended criminal statute of limitations may be applied to acts committed prior to the effective date of the amendment, so long as the crime charged is not time barred. See, State v. Johnson, 158 Vt. 344, 612 A.2d 1114 (1992); Gallardo v. State, 768 S.W.2d 875 (Tex. Crim. App. 1989); State v. Creekpaum, 753 P.2d 1139 (Alaska 1988); State v. Hodgson, 108 Wash. 2d 662, 740 P.2d 848 (1987); People v. Whitesell, 729 P.2d 985 (Colo. 1986). Many of the courts favoring this approach have done so on grounds that statutes of limitations are procedural in nature and do not raise ex post facto concerns. See, People v Russo, 439 Mich. 584, 487 N.W.2d 698 (1992); State v. Casaretto, 818 S.W.2d 313 (Mo. App. 1991); People v Chesebro, 185 Mich. App. 412, 463 N.W.2d 134 (1990); State v. Noah, 246 Kan. 291, 788 P.2d 257 (1990); People v. Sweet, 207 Cal. App. 3d 78, 254 Cal. Rptr. 567 (1989); Commonwealth v. Bargeron, 402 Mass. 589, 524 N.E.2d 829 (1988); Holland v. Dist. Court, Douglas Cty., Colo., 831 F.2d 940 (10th Cir. 1987). Other jurisdictions have rejected the proposition that statutes of limitations are merely procedural in nature and, instead, have held that the retroactive application of an amended criminal statute of limitations raises ex post facto concerns. Courts favoring this approach have held that an amended statute of limitations cannot be applied to an act committed prior to the effective date of the amended limitations period. See, Morgan v. State, 847 S.W.2d 538 (Tenn. Crim. App. 1992); State v. Hersch, 445 N.W.2d 626 (N.D. 1989); State v. Shamp, 422 N.W.2d 736 (Minn. App. 1988), rev’d on other grounds 427 N.W.2d 228 (Minn.); Kirby v. State, 500 So. 2d 79 (Ala. Crim. App. 1986); State v. Merolla, 100 Nev. 461, 686 P.2d 244 (1984).

As indicated by the case law cited immediately above, there is [1123]*1123a split in the jurisdictions on this question. Criminal statutes of limitations are considered procedural in nature in Oklahoma, but that state also has a criminal statute which prohibits retroactive application of criminal procedure statutes unless otherwise specifically provided. See State v. Watkins, 837 P.2d 477 (Okla. Crim. App. 1992). There have been conflicting rulings on this question within the same jurisdiction. See Com. v. Harvey, 374 Pa. Super. 289, 542 A.2d 1027 (1988) (when a new period of limitations is enacted before the prior period of limitations has expired, in the absence of language to the contrary, the period of time accruing under the prior statute of limitations shall be applied to calculation of the new period of limitations). But see Com. v. Atwood, 411 Pa. Super. 137, 601 A.2d 277 (1991) (the statute of limitations in effect on the date the alleged fraud occurred is applicable, rather than the statute of limitations as it was subsequently amended).

Abboud v. Lakeview, Inc., 223 Neb. 568, 391 N.W.2d 575

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Related

State v. Watkins
1992 OK CR 50 (Court of Criminal Appeals of Oklahoma, 1992)
State v. Creekpaum
753 P.2d 1139 (Alaska Supreme Court, 1988)
People v. Whitesell
729 P.2d 985 (Supreme Court of Colorado, 1986)
Grand Island School District 2 v. Celotex Corp.
279 N.W.2d 603 (Nebraska Supreme Court, 1979)
State v. Noah
788 P.2d 257 (Supreme Court of Kansas, 1990)
In Re Estate of Watkins
501 N.W.2d 292 (Nebraska Supreme Court, 1993)
State v. Hodgson
740 P.2d 848 (Washington Supreme Court, 1987)
Knoell v. Huff
395 N.W.2d 749 (Nebraska Supreme Court, 1986)
Kirby v. State
500 So. 2d 79 (Court of Criminal Appeals of Alabama, 1986)
Gallardo v. State
768 S.W.2d 875 (Court of Appeals of Texas, 1989)
Pflasterer v. Omaha National Bank
268 N.W.2d 104 (Nebraska Supreme Court, 1978)
State v. Shamp
427 N.W.2d 228 (Supreme Court of Minnesota, 1988)
Abboud v. Lakeview, Inc.
391 N.W.2d 575 (Nebraska Supreme Court, 1986)
State v. Hersch
445 N.W.2d 626 (North Dakota Supreme Court, 1989)
Commonwealth v. Harvey
542 A.2d 1027 (Supreme Court of Pennsylvania, 1988)
State v. Von Dorn
449 N.W.2d 530 (Nebraska Supreme Court, 1989)
State v. Johnson
612 A.2d 1114 (Supreme Court of Vermont, 1992)
Commonwealth v. Bargeron
524 N.E.2d 829 (Massachusetts Supreme Judicial Court, 1988)
State v. Shamp
422 N.W.2d 736 (Court of Appeals of Minnesota, 1988)

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Bluebook (online)
510 N.W.2d 534, 1 Neb. Ct. App. 1120, 1993 Neb. App. LEXIS 346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hirsch-nebctapp-1993.