539 N.E.2d 1159 | Ohio Ct. App. | 1988
The dispositive question in this appeal is whether the statute barring prosecutions of felonies (other than aggravated murder or murder), unless commenced within six years, R.C.
The body of Roxie Cass, age ninety-five, was discovered in her ransacked apartment on Linn Street in Cincinnati on January 3, 1978, and the coroner's report stated that the cause of her death was a homicide. A fingerprint of an unknown person was found in the apartment. More than eight years later, on September 19, 1986, an officer in the Cincinnati Criminalistics Unit advised the Cincinnati Homicide *40 Squad that the fingerprint matched that of defendant-appellant Charles C. Brown. (The sparse record does not disclose when the identity of the fingerprint was discovered.) The defendant was arrested and confessed to having been implicated with another man in the homicide, conceding that they had entered the apartment illegally, hit the victim, stolen her Jeanie card, and used the card to withdraw $150 from her account.
The defendant was indicted on five counts on October 15, 1986. The first two counts charged felony murder, the first count while committing aggravated robbery and the second count while committing aggravated burglary. The third count charged aggravated robbery, the fourth aggravated burglary, and the fifth theft of the credit card. Among various pretrial motions, the defendant moved to dismiss the last three counts on the ground that the prosecution of those three felonies was barred by R.C.
On appeal, the defendant contends in his single assignment of error that the trial court erred when it overruled his motion to dismiss the third count charging aggravated robbery.1 The prosecution's first response is that the defendant cannot raise that contention on appeal because he waived it when he offered his guilty plea. It is abundantly clear that a plea of guilty waives all defects in the case except the lack of subject-matter jurisdiction of the court (assuming, of course, the regularity and constitutionality of the plea itself and the procedure by which it was accepted by the court). Ross v. Court (1972),
Recently, this court said:
"The interpretation of a statute is the determination of what the statute means. The interpretation starts and ends with the words chosen by the legislature, but it is not limited to the words alone, because the whole context of the enactment must be considered.
"The process of interpretation requires (1) a decision about the purpose to be attributed to the statute and (2) a decision about the meaning of the legislature's words that will carry out that purpose. The words have a double function: they serve as guides to discovery of the purpose, and they serve as limitations on the extent of the statute's applications. The words must be taken in their usual, normal or customary meaning." State v.Cravens (1988),
R.C.
"(A) Except as otherwise provided in this section, aprosecution shall be barred unless it is commenced within thefollowing periods after an offense is committed:
"(1) For a felony other than aggravated murder or murder, sixyears;
"(2) For a misdemeanor other than a minor misdemeanor, two years;
"(3) For a minor misdemeanor, six months.
"(B) If the period of limitation provided in division (A) of this section has expired, prosecution shall be commenced for an offense of which an element is fraud or breach of a fiduciary duty, within one year after discovery of the offense either by an aggrieved person, or by his legal representative who is not himself a party to the offense.
"(C) If the period of limitation provided in division (A) of this section has expired, prosecution shall be commenced for an offense involving misconduct in office by a public servant as defined in section
"(D) An offense is committed when every element of the offense occurs. In the case of an offense of which an element is a continuing course of conduct, the period of limitation does not begin to run until such course of conduct or the accused's accountability for it terminates, whichever occurs first.
"(E) A prosecution is commenced on the date an indictment is returned or an information filed, or on the date a lawful arrest without a warrant is made, or on the date a warrant, summons, citation, or other process is issued, whichever occurs first. A prosecution is not commenced by the return of an indictment or the filing of an information unless reasonable diligence is exercised to issue and execute process on the same. A prosecution is not commenced upon issuance of a warrant, summons, citation, or other process, unless reasonable diligence is exercised to execute the same.
"(F) The period of limitation shall not run during any time when the corpus delicti remains undiscovered.
"(G) The period of limitation shall not run during any time when the accused purposely avoids prosecution. Proof that the accused absented himself from this state or concealed his identity or whereabouts is prima-facie evidence of his purpose to avoid prosecution.
"(H) The period of limitation shall not run during any time a prosecution against the accused based on the same *42 conduct is pending in this state, even though the indictment, information, or process which commenced the prosecution is quashed or the proceedings thereon are set aside or reversed on appeal." (Emphasis added.)
While there is an ambiguity in the language chosen by the legislature, we believe that all uncertainties are dispelled by analysis of the design and structure of the entire statute.
The ambiguity lies in the use of the verb "barred," in Division (A) in the phrase "a prosecution shall be barred unless it is commenced * * *." The word is commonly used in connection with both statutes of limitations and statutes of repose. We say that a civil action is "barred" by a statute of limitations because it is brought after the expiration of the statutory period, but that "bar" may be lifted or waived by the defendant's later acknowledgement of the civil liability or any other waiver. We also say that a medical claim is "barred" by the four-year statute of repose for medical malpractice, R.C.
Any uncertainty arising from that double meaning of "bar" is, in our opinion, dispelled by analysis of the remaining divisions of R.C.
Our examination of the three recognized statutes of repose discloses an entirely different structure and design. The statute of repose for medical malpractice uses the following language: "In no event shall any medical claim * * * be brought more than four years after * * * the alleged malpractice occurred" (emphasis added). Until it was held to be unconstitutional, the section purported to eliminate the medical claim notwithstanding the provisions of R.C.
The only criminal statute of limitations in Ohio that preceded R.C.
Another statute of repose is R.C.
Giving effect to all the provisions of R.C.
The single assignment of error is overruled. The judgment of the trial court is affirmed.
Judgment affirmed.
KLUSMEIER, P.J., and UTZ, J., concur.
"(2) Except as to persons within the age of minority, of unsound mind, or imprisoned, as provided by section
"(a) In no event shall any action upon a medical, dental, optometric, or chiropractic claim be commenced more than four years after the occurrence of the act or omission constituting the alleged basis of the medical, dental, optometric, or chiropractic claim.
"(b) If an action upon a medical, dental, optometric, or chiropractic claim is not commenced within four years after the occurrence of the act or omission constituting the alleged basis of the medical, dental, optometric, or chiropractic claim, then, notwithstanding the time when the action is determined to accrue under division (B)(1) of this section, any action upon that claim is barred.
"Actions for the recovery of fines, penalties, or forfeitures, or prosecutions for the commission of any offense made punishable by any ordinance of any municipal corporation, shall be commenced within one year after the violation of the ordinance, or commission of the offense, except as provided in section
R.C.
"No action to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained as a result of said injury, shall be brought against any person performing services for or furnishing the design, planning, supervision of construction construction of such improvement to real property, more than ten years after the performance or furnishing of such services and construction. This limitation does not apply to actions against any person in actual possession and control as owner, tenant, or otherwise of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought."