State v. O'NEILL

796 P.2d 121, 118 Idaho 244, 1990 Ida. LEXIS 122

• Court: Idaho Supreme Court
• Decided: August 1, 1990
• Docket: 17547
• Status: Published

Opinions

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 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, “[ujntil 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 limitation did not violate the ex post facto prohibitions contained in our federal and state constitutions. Most courts that have considered this issue have so held.

Hodgson, 740 P.2d at 851-52. (Footnotes and citations omitted.)

We adopt the reasoning of Clements v. United States and State v. Hodgson.

As the statute of limitations in effect at the time of the commission of the acts with which O’Neill is charged had not run, the extension of that time by the legislature is not an ex post facto law.

III.

APPLICABILITY OF I.C. § 73-101 (RETROACTIVE APPLICATION)

The argument is presented to this Court that I.C. § 73-101, which provides that “[n]o part of these compiled laws is retroactive, unless expressly so declared,” prohibits the application of the five year statute of limitations to the acts of the defendant committed at the time when a shorter (three year) statute of limitations was in effect. This contention, it is argued, is supported by Mellinger v. State, 113 Idaho 31, 740 P.2d 73 (Ct.App.1987), review denied, and State v. Lindquist, 99 Idaho 766, 589 P.2d 101 (1979).

Mellinger v. State and State v. Lindquist do not afford the support for this argument urged by its proponents. Mel-linger involved an imposition of a limit of five years following conviction during which post-conviction relief could be sought. This limitation was imposed after the conviction of Mellinger. The Court of Appeals held that applying this limitation to Mellinger was permissible and did not violate the provisions of I.C. § 73-101, although prior to the imposition of the five year limitation there had been no time limitations at all. The Court of Appeals stated that the argument of the appellant in Mel-linger was that “under Mellinger’s interpretation, a party convicted prior to 1979 would never be restricted as to filing a post-conviction relief petition; no reasonable time limit on the filing of a petition could ever be established.” Mellinger, 113 Idaho at 33, 740 P.2d at 75.

In State v. Lindquist, the defendant was sentenced under a death penalty in effect in February of 1976, which was subsequently found to be unconstitutional. This Court was urged to apply the sentencing statute that had been adopted by the legislature in 1977 retroactively to the conviction and sentencing of Lindquist. State v. Lindquist does not support the rationale urged upon this Court, as in this case the amended statute of limitations is applied prospectively, not retroactively. To adopt the argument of an application of I.C. § 73-101 to this case would require a holding that criminal conduct committed at a definite time embraced within it the statute of limitations in force at the time of the criminal act. This Court would be required to hold that the violation of a statute by an individual conferred upon that individual at the time of the violation of the statute, a “bundle of rights” which included the then statute of limitations, which rights were vested at the time of the violation of the statute and could not be altered or amended by the legislature. We cannot accept this reasoning. This argument was also rejected in Mellinger v. State. The statute of limitations had not run on the acts committed by O’Neill at the time of the amendment of the statute of limitations to the longer five year term. Therefore, the application of the statute was prospective, not retroactive. Idaho Code § 73-101 does not preclude the legislature from amending the statute of limitations applicable to a given individual after the individual has committed a crime, but prior to the running of the statute of limitations in existence at the time of the commission of the crime.

IV.

THE AMENDED INFORMATION

On December 21, 1987, a complaint was filed alleging that O’Neill had committed the crime of lewd conduct with a minor in violation of I.C. §§ 18-6607 and 18-1508, on two counts. O’Neill waived his right to a preliminary hearing and was bound over to district court on January 21, 1988. On January 22, 1988, he was arraigned on an Information, again charging violations of I.C. §§ 18-6607 and 18-1508.

On January 25, 1988, O’Neill entered a conditional plea of guilty to one count of sexual abuse of a minor in violation of I.C. § 18-1506, based on the facts alleged in both the original and Amended Information. Idaho Code § 18-1506 is a lesser included offense of the crimes charged in the original Information.

Pending the receipt of a presentence report as ordered by the trial court, on February 5, 1988, the State filed an Amended Information charging O’Neill with a violation of I.C. § 18-1506, the charge to which he had entered his conditional plea of guilty.

On February 29, 1988, the trial court, after reviewing the presentence report, advised O’Neill that it could not accept the proffered plea. O’Neill withdrew the guilty plea and was ordered to stand trial on March 7 of that year on the Amended Information charging a violation of I.C. § 18-1506.

Although not raised by either of the parties on this appeal, the question has arisen in review of the matter as to the propriety of the Amended Information and the ordering of O’Neill to stand trial on that Amended Information absent a preliminary hearing as provided for in I.C. § 19-1308 and art. 1, § 8 of the Constitution of the State of Idaho. If the conduct herein described violated the above code section or constitutional provision, it is asserted that the district court would be without jurisdiction to deal with O’Neill on the Amended Information.

The pertinent provision of I.C. § 18-1506, under which O’Neill was charged in the Amended Information, reads as follows:

18-1506. Sexual abuse of a child under the age of sixteen years. — (1) Any person eighteen (18) years of age or older who shall:

(a) solicit a minor child under the age of sixteen (16) years to participate in a sexual act, or

(b) who shall cause or have sexual contact with such a child, not amounting to lewd conduct as defined by section 18-1508, Idaho Code, ...

(2) For the purposes of this section “solicit” means any offensive written, verbal, or physical act which is intended to communicate to the child the actor’s desire to participate in a sexual act or participate in sexual foreplay, ...

(3) For the purposes of this section “sexual contact” means any physical contact between the child and the actor, ... any of which is intended to gratify the lust or sexual desire of the actor or a third party.

The acts comprising a violation of I.C. § 18-1506 as set forth and alleged in the Amended Information are the same acts with which O’Neill was charged in the original Complaint and original Information alleging violation of I.C. § 18-1508.

This Court has dealt with this issue previously. In the case of State v. Mickey, 27 Idaho 626, 150 P. 39 (1915), the Supreme Court held: “the facts alleged rather than the designation of the offense, control.” State v. Mickey, id. at 631, 150 P. at 40.

In State v. McKeehan, 91 Idaho 808, 430 P.2d 886 (1967), this Court held as follows:

An accused is denied, therefore, his constitutional right to a preliminary hearing where an information is filed or subsequently amended charging him with a crime of a greater degree or of a different nature than that for which he was held by the committing magistrate.

It is, additionally, in this state, specifically provided by statute that a different and distinct offense may not be charged by way of amended information. I.C. § 19-1420. See, State v. Thompson [392 S.W.2d 617 (Mo.1965).]

However, we conclude that the amendment permitted in the present case did not have the effect of charging a greater or different offense such that the appellant was denied his constitutional and statutory right to a preliminary hearing within the holdings of the cases above cited. Nor do we find the amendment to the information prohibited by statute. ******

The original complaint filed with the justice court thus charged both aggravated assault and aggravated battery, and, consequently, the amendment of which appellant complains did not have the effect of prejudicing any substantial right of the appellant since the amendment was one of form only and not substance.

State v. McKeehan, 91 Idaho at 817-18, 430 P.2d at 895-96 (footnote omitted).

In State v. Ranstrom, 94 Idaho 348, 487 P.2d 942 (1971), the Court again dealt with the issue of amending an Information and an analysis of I.C. § 19-1420. The Court held:

In this case the amendment to the information did not add to nor change the offense with which appellant was charged. Rather, the amendment merely added allegations required to be in the information. I.C. § 18-1402 defines first degree burglary as every burglary committed in the night time. Since the information here already charged first degree burglary and the commission of that offense in the night time is an essential element, appellant must have known that the state was contending that the act occurred at night. Additionally appellant had once been arraigned on this precise charge, i.e., burglary of the first degree. Appellant could not have been surprised nor prejudiced by the amendment.

Ranstrom, 94 Idaho at 351, 487 P.2d at 945 (emphasis in original).

In this case, O’Neill had pled guilty to violating I.C. § 18-1506 upon the same facts alleged in the original Information and the Amended Information. He clearly understood the acts for which he was being charged. No different facts were alleged in the Amended Information. Violation of I.C. ■§ 18-1506 is a lesser included offense when an individual is charged with violations of I.C. § 18-1508. O’Neill was not being charged with a totally different crime, nor any acts different than those originally alleged. In point of fact, the Amended Information formally charged him with a crime that was punishable by ten years in prison as opposed to I.C. § 18-1508 which is punishable by “a term of not more than life.”

We do not find in this case the Amended Information to have violated the provisions of I.C. § 19-1420, nor art. 1, § 8 of the Idaho Constitution.

We affirm the judgment of the district court.

BAKES, C.J., BOYLE, J„ and McFADDEN, J. Pro Tem., concur.