Dеfendant-appellant John Greichunos appeals from the trial court's denial of his motion to dismiss an information charging him with arson. Greichunos mаintains the fiveyear statute of limitations of IND. CODE 35-41-4-2(a), in force when the instant prosecution was begun, is applicable and asserts the information, filed nearly seven years after the alleged offense was committed, is untimely. The State, on the other hand, claims the limitations statute in effect whеn the crime was allegedly committed, which provided the prosecution could be brought any time after the crime *616 was committed, controls. For the reasons stated below, we reverse.
DECISION
On February 18, 1982, Greichunos was charged with arson in connection with an April 16, 1975 fire at a drug store in Dyer, Indiana. At thе time of the alleged offense, IND.CODE 85-1-38-1 (Burns 1975) was in force and provided that prosecutions for treason, murder, arson and kidnapping could be commenced "at any time after the commission of the offense." Effective October 1, 1977, Indiana's criminal code was revised and under the presеnt Penal Code, 1.C. 85-1-3-1 was repealed and replaced by IND.CODE 35-41-4-2, which fixes a five-year limitations period for Class B felonies. *
Greichunos maintains the trial court erred in denying his motion to dismiss inasmuch as the instant prosecution is barred by the limitations period of L.C. 35-41-4-2, in effect when the information herein was filеd. Conversely, the State argues the trial court correctly applied the longer limitations period of I.C. 85-1-3-1 which was in force on the date оf the alleged crime. Because we conclude the instant controversy is controlled by Streepy v. State, (1931)
In Streepy, our supreme court held the applicаble statute of limitations was that which was in effect at the time the prosecution was instituted. Streepy was charged with bank robbery. On the date of thе robbery, August 25, 1927, there was a five-year statute of limitations for robbery and a two-year limitations period for all offenses not governed by another specific statutory provision. Twenty-one months later, on May 19, 1929, the legislature instituted a general five-year statute of limitations for felonies. Thе indictment charging Streepy was returned September 12, 1980. Streepy contended that bank robbery was governed by the former two-year general limitаtions period rather than the former five-year limitations period for robbery, and the prosecution was therefore barred. Our supreme сourt held that it was not required to decide which of the former limitations periods was applicable because the prosecution, bеgun in 1980, was governed by the five-year statute of limitations enacted by the legislature in 1929. In so deciding, the court offered the following explanation as to why the amended statute applied:
"Statutes of limitations pertain to the remedy and not to substantive civil rights. Terry v. Davenport (1916)185 Ind. 561 , 576,112 N.E. 998 . There can be no vested right in a remedy or mode of procedure. Sage v. State (1891)127 Ind. 15 ,26 N.E. 667 ; Robinson v. State (1882)84 Ind. 452 ; In re Petition to Transfer Appeals (1931)202 Ind. 365 ,174 N.E. 812 , 813, 818. The accused in a criminal case cannot claim that the period prescribed by law in which a prosecution shall be begun shall remain the same as when the crime was committed. The period of limitation is grаnted in the grace of the sovereign and may be enlarged or contracted or altogether taken away, provided the accusеd is not entitled to go acquit before the subsequent law is enacted Commonwealth v. Duffy (1881)96 Pa. 506 ,42 Am.Rep. 554 ; 16 CJ. 222."
The State asks that we reconsider the principle enunciated in Streepy and set *617 forth in its place a rule making applicable the statute of limitations in effect at the time of the offense. We decline this invitation. We do not believe, as argued by the State, that the rule of Streepy provides significantly less certainty than a rule fixing the limitations period at the time of the offensе. Further, we do not accept the State's contention that Streepy might create problems with ex post facto laws, inasmuch as under Streepy, a newly-enacted statute of limitations cannot revive a previously barred prosecution.
An additional matter which requires our сomment is the effect of the savings clause contained in Acts of 1977, P.L. 840, § 150. That clause states:
"(a) Neither this act nor Acts 1976, PL. 148 affects:
(1) rights or liabilities accrued;
(2) penalties incurred; or
(3) proceedings begun;
before October 1, 1977. Those rights, liabilities, and procеedings are continued, and penalties shall be imposed and en-foreed as if this act and Acts 1976, P.L. 148 had not been enacted.
(b) An offense committed before October 1, 1977, under a law repealed by Acts 1976, P.L. 148 shall be prosecuted and remains punishable under the repealed law.
(c) Notwithstanding subsections (a) and (b) of this section, a defense available under IC 85-41-38 is available to any defendant tried or retried after September 80, 1977."
Whilе we have held this savings clause acts to preserve the prior provisions regarding sentencing, see, i.e., Vicory v. State, (1980)
It is а necessary burden of the State to establish the crime charged was committed within the statute of limitations. Fisher v. State, (1973)
Here, the face of the information reveals the prosecution is untimely. The State has made no allegations of concealment or any other cireumstance which might remove the cause from the limitations period.
Accordingly, we reverse аnd remand the cause with instructions to dismiss.
Notes
We presume, and the State acknowledges in its brief, that the offense charged would now likely be classified а Class B felony. Greichunos was charged with second degree arson under IND. CODE 35-16-1-2 (Burns 1975) (repealed Acts 1976, P.L. 148, § 24). There was no allegation his actions resulted in bodily injury to another person, which would elevate the offense to a Class A felony under the present IND.CODE 35-43-1-1.