605 N.E.2d 978 | Ohio Ct. App. | 1992
The state appeals trial court's determination that the statute of limitations pursuant to R.C.
A review of the record reveals that Mitchell was indicted on two counts of theft in violation of R.C.
Mitchell was also indicted on a third count of trafficking in food stamps in violation of R.C.
The administrative agency responsible for the benefits became aware of each of these violations on June 22, 1988. The indictment was filed on August 23, 1990.
On April 23, 1991, Mitchell filed a motion to dismiss, alleging that the statute of limitations had expired. This motion was heard on May 24, 1991, in open court. The trial court granted the motion after determining that R.C.
"The trial court erred in granting the motion to dismiss and ruling that the time period under the statute of limitations, R.C.
The Supreme Court recently stated in State v. Hensley (1991),
"R.C.
"`(A) Except as otherwise provided in this section, aprosecution is barred unless it is commenced within thefollowing periods after an offense is committed:
"`(1) For a felony other than aggravated murder or murder, six years[.]'
"Thus, the plain wording of the statute requires thatfelony prosecutions (other than aggravated murder or murder)must be brought within six years from the date the offense iscommitted. However, by use of the phrase `[e]xcept as otherwise provided in this section,' the General Assembly has afforded the state certain statutory exceptions to the absolute bar, and has done so in the form of specialized rules and tolling provisions. Indeed, the *615
legislature has enumerated these rules and tolling exceptions inthe succeeding paragraphs of R.C.
The state argues that R.C.
The defendant-appellee urges this court to agree with the trial court's application of State v. Dauwalter (C.P.1988),
The court in Dauwalter stated the following:
"Defendant argues that prosecution is barred under subsections (A) and (B) unless the indictment is returned either: (1) within the original six-year period if the fraud is discovered sooner than five years from the date of the offense (as in the present case); or (2) within one year after discovery of the offense when discovery occurs at some time during the fifth year of the six-year limitation designated by subsection (A); or (3) within one year after discovery of the offense if discovery occurs after the six-year limit has run.
"To rule otherwise would mean that subsection (B), which setsforth the one-year limitation, would never apply under anycircumstances. Under the state's interpretation, and its reliance upon the tolling aspect of subsection (F), the state could file charges within six years of the `discovery' of an *616 offense no matter how far back the offense occurred. In the hypothetical situation where one assumed a fraud was discovered twenty years after its commission, the state would argue under subsection (F) that it could return an indictment for up to six years thereafter, or within a period of twenty-six years after the commission of the offense. Subsection (B) in such instancewould be superfluous and could never be applied because the statewould always have six full years from `discovery,' and this timewould always eclipse the one-year restriction under subsection(B). The court can not believe the legislature intended to enacta superfluous provision of the statute in question. It is apparent subsections (B) and (F) are in conflict and irreconcilable under such a stringent interpretation.
"Defendant cites the case of State v. Young (1981),
"Second, `[t]he State bears the burden of proving that the time when the crime was committed comes within the appropriate statute of limitations.' Id. The issue of proper time limitation is jurisdictional. See Cleveland v. Hirsch (1971),
Were we to endorse the state's argument, the intent of the General Assembly in enacting R.C.
Therefore, we affirm the trial court's determination to apply the Dauwalter reasoning to this case.
In the present case, but for the tolling provisions, the first count would ordinarily have to be commenced prior to December 1988, the second count by May 1990, and the third county by May 1990. R.C.
On the first count, since the discovery of the fraud occurred on June 22, 1988, the limitations period was extended until June 22, 1989, pursuant to the second criterion enunciated byDauwalter. The indictment was filed on August 23, 1990, thirteen months past the statute of limitations deadline, and was therefore not timely.
The second and third counts present a set of circumstances covered by the first criterion set forth in Dauwalter, since the fraud was discovered sooner than five years from the occurrence. The period of limitations ran for six years from the month of May 1984, lapsing in May 1990. The indictment was filed approximately three months after the running of the statute of limitations, thereby rendering the indictments invalid.
Judgment affirmed.
MATIA, C.J., JAMES D. SWEENEY and BLACKMON, JJ., concur.
R.C.
