Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office
STATUTE OF LIMITATIONS
(ME153)
Also see Speedy
Trial.
Basics
Discovery of corpus delicti
Tolling issues
R.C. 2901.13 -- Limitation of criminal
prosecutions.
Basics
Stogner v. California (2003), 123 S.Ct.
2446 -- The Ex Post Facto Clause bars revived prosecution of an offense
previously barred by the running of a statute of limitations. After the
previously specified three-year period had run, California enacted a new law
permitting prosecution of old offenses if commenced within one year of report to
the police.
State v. Crooks, 152 Ohio App. 3d 294,
2003-Ohio-1546 -- Amendment of
R.C. 2901.13(A)(3) to expand the limitations
period from six to twenty-two years for certain offenses does not violate the
Ohio Constitution's ban on retroactive laws. Retroactive application was
intended as the statute states time is extended only for those offenses where
the time for commencing prosecution had not yet run under the former provision.
Change deemed remedial, not substantive. Also see State v. Steele, 155
Ohio App. 3d 659,
2003-Ohio-7103; State v. Cann, 125 Ohio Misc. 2d 52,
2002-Ohio-7481;
State v. Warren, 168 Ohio App. 3d 288,
2006-Ohio-4104.
State v.
Danley, 138 Ohio Misc.2d 1,
2006-Ohio-3585 -- Prosecution was commenced by the issuance
of a John Doe warrant identifying the accused by gender and a
detailed DNA profile. State v. Dabney
(2003), 264 Wis.2d 843, 663 N.W.2d 366, followed.
Daniel v. State, 98 Ohio St. 3d 467,
2003-Ohio-1916 -- Former inmate is unsuccessful in his attempt to raise a
statute of limitations claim in a habeas action. (1) Generally habeas lies when
immediate release from confinement is at issue. Loss of right to own a firearm,
to vote, or other civil disabilities are not enough. The state writ is not
coextensive with the federal writ. (2) Lost liberties were not of sufficient
severity to warrant habeas relief. (3) A statute of limitations violation does
not deprive a trial court of jurisdiction. The statute is one of jurisdiction,
not repose. (4) Habeas is not a substitute for appeal or postconviction.
State v. Smith (2000), 110 Ohio Misc. 2d
39 -- Reasonable diligence not shown where warrants were issued, but the record
shows no return, and indicates they were never issued.
State v. Tolliver (2001), 146 Ohio App. 3d
186 -- (1) The statute of limitations is jurisdictional and is not waived when
not raised by trial counsel. The failure to raise the claim constituted
ineffective assistance of counsel. (2) The statute of limitation for the crime
of conspiracy begins to run from the time of the last overt act committed in
furtherance of the conspiracy. This is no later than the time of completion of
the substantive offense which is the subject of the conspiracy. (3) The
concealment of a conspiracy does not toll the running of the statute of
limitations. (4) Defendant was acquitted of aggravated murder and murder counts
but convicted of conspiracy to commit murder. If the state cannot demonstrate
tolling on remand he is entitled to be discharged.
State v. Amin, 156 Ohio App. 3d 304,
2004-Ohio-886 -- Noting the conflict between State v. Tolliver (2001),
146 Ohio App. 3d 186, 192, and State v. Brown
(1988), 43 Ohio App. 3d 39, 43, the Sixth District holds the statute of
limitations is not jurisdictional. Failure to raise claim in the trial court
leads to plain error review. In any event, since one convicted of complicity to
commit murder is subject to the same punishment as the principal offender, there
is not time limit.
State v. Phipps, Franklin App. No.
03AP-533,
2004-Ohio-3226 -- Erroneous handling of statute of limitations issue
leads to reversal of a murder conviction, when an accomplice was a key witness
for the state. (1) Complicity to murder is not subject to the statute of
limitations. (2) It was error to allow a detective to testify as to matters of
law concerning the statute of limitations. (3) It was a denial of confrontation
to forbid cross of the detective in this regard.
Cleveland v. Hirsh (1971), 26 Ohio App. 2d
6, 7 -- While in a civil case the running of the statute of limitations must be
interposed as an affirmative defense and in a timely manner, in criminal cases:
"It is universally held that such statutes cannot be waived by failure to assert
them, but may be raised at any time, before or after conviction." Compare
State v. Brown (1988), 43 Ohio App. 3d 39 holding claim is waived by entry
of guilty plea.
State v. Morris (1984), 20 Ohio App. 3d
321 -- Headnotes: "(1) A prosecution is not commenced so as to toll the running
of the statute of limitations merely by the issuance of a summons or warrant,
unless reasonable diligence is exercised to execute the same. (2) Where a
summons is sent to the defendant by first class mail and returned as
undeliverable, the prosecution has not exercised reasonable diligence to execute
the summons within the contemplation of
R.C. 2901.13(E). The prosecution is
required to demonstrate that an effort has been made to serve the summons in a
manner provided by Crim. R. 4(D)."
State v. Greer (1981), 2 Ohio App. 3d 399
-- Headnotes: "(1) 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. (2) A prosecution is not commenced upon
issuance of a warrant, summons, citation, or other process, unless reasonable
diligence is exercised to execute the same."
State v. Crow (1986), 28 Ohio Misc. 2d 1
-- Reasonable diligence has not been exercised when the sheriff failed to
execute an outstanding warrant while the defendant was in jail on other charges.
In addition, there was no indication efforts had been made to execute the
warrant at the defendant's home.
State v. King (1995), 103 Ohio App. 3d
210, 212-213 -- "The prosecution bears the burden of proving that the time, when
the prosecution was commenced, falls within the two-year statute of limitations.
To do so, the prosecution must demonstrate that reasonable diligence was
exercised to serve the summons. Here the evidence only showed one attempt was
made to serve appellee when her whereabouts could have easily been ascertained."
Defendant left change of address cards with the Post Office, maintained
employment and paid taxes, filed for bankruptcy, applied for state jobs, and
received a BMV notice at present address.
State v. Young (1981), 2 Ohio App. 3d 155
-- Headnote: "The state bears the burden of proving that the time when the crime
was committed comes within the appropriate statute of limitations. A five-month
investigatory period will not be validated as a reasonable period of time
necessary for 'discovery of the offense' of welfare fraud for purposes of the
one-year saving provision of
R.C. 2901.12(B)" Department had been slow in
processing information leading to filing of charges and unless this period could
be excluded, time had run.
State ex rel. Tubbs Jones v. Suster
(1998), 84 Ohio St. 3d 70, -- Action to have Sam Shepard declared innocent may
or may not have been barred by statute of limitations concerning wrongful
imprisonment actions. But since the expiration of a statute of limitations is
not a jurisdictional defect, the remedy is appeal following final judgment, not
a prohibition action.
State v. Hollis (1993), 91 Ohio App. 3d
371 -- Statute of limitations issue was raised by the judge during a guilty plea
hearing, but counsel could not say whether it was a legitimate issue, and the
matter was not definitively addressed from the bench. Post-sentence motion to
withdraw guilty plea should have been granted to correct manifest injustice.
State v. King (1996), 114 Ohio App. 3d
669, 673 -- For purposes of the statute of limitations, the issuance of uniform
traffic ticket, which serves as both complaint and summons, served to commence
prosecution of a traffic offense.
State v. Selvage (1997), 80 Ohio St. 3d
465 -- Syllabus: "Statutory periods of limitations are not relevant to a
determination of whether an individual's constitutional right to a speedy trial
has been violated by an unjustified delay in prosecution."
Spaziano v. Florida (1984), 468 U.S. 447
-- There is no obligation to instruct the jury on a lesser included offense in a
capital murder case where prosecution for such lesser offense would be barred by
the statute of limitations.
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Discovery of corpus delicti
State v. Preztak,
181 Ohio App. 3d 106,
2009-Ohio-621 – When a theft offense is premised on a continuing course of
conduct, such as embezzlement, time does not begin to run for purposes of the
statute of limitations until the final theft occurs.
R.C. 2913.61(C)(1)
required offenses within the employment be aggregated. They could not be
prosecuted as separate counts.
State v. Alexander (1989), 58 Ohio App. 3d
28, 29 -- "...(W)hen a child-victim does not know that an act is wrong, the
corpus delicti of the crime remains undiscovered, and the period of
limitation does not commence to run until the wrong is discovered."
State v. Hensley (1991), 59 Ohio St. 3d
136 -- Syllabus: "For purposes of
R.C. 2901.13(F), the corpus delicti of crimes
involving child abuse or neglect is discovered when a responsible adult, as
listed in R.C. 2151.421, has knowledge of both the act and the criminal nature
of the act." Also see State v. Bailey (1992), 83 Ohio App. 3d 749,
751-752; State v. Weiss (1994), 96 Ohio App. 3d 379. (Prosecution barred
where victims were 15 and 17 at the time of the acts alleged, but waited ten
years or more to report what had happened.) Compare State v. Climaco, Climaco,
Seminatore, Lefkowitz & Garafoli Co., L.P.A. (1999), 85 Ohio St. 3d 582.
State v. Elsass (1995), 105 Ohio App. 3d
277 -- Acts of molestation occurred when victim was between 8 and 12, but were
not recalled until she was 18. Since she did not report acts to a responsible
adult prior to reaching the age of majority, time did not begin to run before
age of majority.
State v. Hughes (1994), 92 Ohio App. 3d 26
-- With respect to child victims of sex abuse, now past the age of majority, the
statute of limitations begins to run after the prosecutor or other law
enforcement authorities discover the corpus delicti. Unless a victim past
the age of majority is shown not to have recognized the unlawful nature of the
act, time runs from attaining the age of majority. Also see State v. Webber
(1995), 101 Ohio App. 3d 76.
State v. Ritchie (1994), 95 Ohio App. 3d
569 -- Corpus delicti of rape and GSI was discovered when the child's baby
sitter reported his account of sexual conduct to the local children services
agency, which investigated but declined to refer the matter for prosecution
because it could not substantiate the allegations. Six-year statute of
limitations ran from that time.
State v. Rosenberger (1993), 90 Ohio App.
3d 735 -- Child victim of sexual abuse reported incident to her mother, who then
mentioned it to a neighbor who was a paramedic. Applying State v. Hensley
(1991), 59 Ohio St. 3d 136 the parent's knowledge did not trigger the period of
limitation, as a parent may not always report abuse in a timely manner. While a
paramedic is an "other health care professional" required to report abuse, time
was not triggered as the person in question came into the information as a
neighbor and not in his official capacity.
State v. Turner (1993), 91 Ohio App. 3d
153 -- Rationale of State v. Hensley
(1991), 59 Ohio St. 3d 136 extended to an R.S.P. case where the person who
discovered the corpus delicti was a family member, and thus unlikely to fulfill
the public duty of reporting to the authorities.
State v. Lester (1996), 111 Ohio App. 3d
736 -- Information that welfare recipient was employed, reflected by state tax
returns and investigation by the state auditor, could not be imputed to county
welfare department until it received report from the auditor.
State v. Mitchell (1992), 78 Ohio App. 3d
613 -- Court concludes that provision in
R.C. 2901.13(B) allowing one year after
the discovery of the offense for prosecution to commence in certain cases takes
precedence over subdivision (F) which states the period of limitation does not
run during any period when the corpus delicti of the crime remains
undiscovered.
Shaker Heights v. Heffernan (1989), 48
Ohio App. 3d 307 -- Attorney found in contempt after it was discovered he had
appeared in court with a person he knew not to be the person named in a traffic
citation. Because fraud was involved, contempt could be prosecuted within one
year of discovery.
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Tolling
issues
State v. Russell,
182 Ohio App. 3d 91,
2009-Ohio-1747 – The corpus delicti of a crime involving the sexual abuse of
children exists when an employee of a children services agency has knowledge of
both the act and its criminal nature. Here this happened when he defendant made
a confession to a police officer and a caseworker. An indictment was returned 23
years later, by which time the statute of limitations had run. Time was not
tolled because the defendant had left the state to avoid prosecution because
there was no prosecution for him to avoid until the indictment was filed.
State v.
Bess, 182 Ohio App. 3d 364,
2009-Ohio-2254 – Time was tolled while stepfather concealed
his whereabouts during investigation of sex abuse allegations by
a stepson. Time was not tolled with respect to a subsequent
investigation of new allegations by a stepdaughter.
State v.
Gallant, 174 Ohio App. 3d 264,
2007-Ohio-6714 – Bad check charges were filed in 1989. A
single unsuccessful effort was made to serve the defendant by
certified mail. Defendant missed arraignment and a warrant was
issued. A month later she remarried and moved out of state with
her husband who was in the military. She was arrested on the
outstanding warrant seventeen years after it was issued. (1) As
to tolling, change of name and moving out of state may have
given rise to a presumption that she had a purpose to evade
prosecution, but this was rebutted by numerous factors,
including obtaining a marriage license at the courthouse,
calling and leaving contact information when she learned of
charges a few years after they were filed, and returning to the
community, finding employment and entering into community
activities. (2) A single attempt to make service by certified
mail is not reasonable diligence. A further attempt to serve by
regular mail was of no significance.
State v. West (1999), 134 Ohio App. 3d 45
-- Court concludes time did not run, though defendant apparently inquired about
state's willingness to provide an airline ticket so he could return from
Indonesia, which did not have an extradition treaty with the U.S., and made
inquiries at the embassy in Singapore, where there was a treaty.
State v. Wallace, 160 Ohio App. 3d 528,
2005-Ohio-1746, ¶28-29 -- Statute of limitations did not begin to run until the
end of the continuing course of conduct, here depriving the defendant's son of
his Social Security benefits.
State v. Edwards (1997), 119 Ohio App. 3d
237 -- Brother trying to prevent sister's estate passing to her husband learned
defendant had a prior marriage under another name and pursued filing of bigamy
and falsification charges. Statute of limitations runs from time of discovery,
not time of second marriage.
State v. Detillio (1992), 90 Ohio App. 3d
241 -- The three year statute of limitations applicable to securities law
offenses does not contain a provision tolling time while the violation remains
undiscovered. Court finds that the tolling provision set forth in the general
statute of limitations may not be extended to securities cases.
State v. Burchfield (1997), 118 Ohio App.
3d 53, 61-62 -- Police officers concealed employment to receive federal housing
assistance. (1) State bore burden of proving tolling provisions applicable to
breach of fiduciary duty, public servants or undiscovered corpus applied. (2)
Motion to dismiss on statute of limitations grounds was sufficient notice to
state of need to establish time was tolled. (3) As a matter of law, the offense
was not one involving misconduct in office as term is used in
R.C. 2901.13(C).
State v. Tillman (1997), 119 Ohio App. 3d
449, 457 -- Seventeen year old was tried as an adult without having bound over
by juvenile court. Conviction was vacated, he was bound over and again
convicted. Statute of limitations was tolled during the period the first appeal
was pending, and during the time between affirmance and grant of postconviction
relief.
State v. Sakr (1995), 101 Ohio App. 3d 334
-- On the eve of oral examination by thesis committee, member of the committee
used his status to attempt to coerce master's degree candidate into having sex
with him. Incident was promptly reported, but charges were not brought until
more than six years passed. (1) Professor was a public servant for purposes of
the tolling the statute of limitations pursuant to
R.C. 2901.13(C). (2) Such
status does not toll statute of limitations with respect to any offense which
such a person may commit. (3) Here, there was not the required nexus between the
auspices of the office and the wrongdoing that it constitutes an offense against
justice and public administration as codified in
R.C. Chapter 2921, or,
alternatively, the wrongdoer must have misused his or her public office
effectively to conceal the wrongdoing and thus thwart timely prosecution.
State v. Heebsh (1992), 85 Ohio App. 3d
551 -- For purposes of the statute of limitations, a high school tennis coach,
charged with endangering children and sexual battery, is a public servant,
extending the time within which prosecution must be commenced.
State v. Pfouts (1992), 62 Ohio Misc. 2d
587 -- Tolling of the statute of limitations with respect to victims of sex
offenses while they were children ceases at age 18. Victim had revealed incident
to her sister shortly after it happened, but apparently did not contact
authorities until she was more than two years past the age of majority.
State v. Swartz (2000), 88 Ohio St. 3d 131
-- Bridge caused flooding on neighbor's property. So long as it remained a
continuing nuisance within the control of the owner, the statute of limitations
was tolled.
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