NO. 94-313 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

STATE OF MONTANA, 

Plaintiff and Appellant, 

CLINTON MULLIN, JR., a/k/a . . 

CLINT MULLIN, JR., 

Defendant and Respondent. 

APPEAL FROM: District Court of the Seventh J 

In and for the County of 

The Honorable Joe L. 

COUNSEL OF RECORD: 

For Appellant: 

Hon. Joseph P. Mazurek, Attorney General, 

Helena, Montana 

Gary Ryder, Richland County Deputy Attorney, 

Sidney, Montana 

For Respondent: 

Stephen C. Moses, Attorney at Law, 

Billings, Montana 

Filed: 

Submitted on Briefs: November 10, 1994 

Decided: December 0, 1994 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

On March 29, 1994, defendant Clinton Mullin, Jr., was charged 

by amended information in the District Court for the Seventh 

Judicial District in Richland County with felony theft, in 

violation of S 45-6-301(3) (b), MCA, and alternatively with felony 

theft, in violation of 5 45-6-301(1) (b), MCA. On April 14, 1994, 

Mullin moved to dismiss the charges on the basis they were barred 

by the statute of limitations. On June 9, 1994, the District Court 

granted Mullin's April 14 motion to dismiss. The State appeals. 

We affirm the order of the District Court. 

The issue on appeal is: 

Did the District Court err when it concluded that felony theft 

was not continuous conduct for purposes of applying the statute of 

limitations? 

FACTUAL BACKGROUND 

On or about January 12, 1988, an individual named Red Machett 

reported two snowmobiles stolen from the Well Pro Shop yard in 

Williams County, North Dakota. Six years later, on February 7, 

1994, Arnie Hove, the County Attorney of McCone County, Montana, 

advised law enforcement officers in Richland County that he had 

information about the missing snowmobiles. 

Hove had represented Mullin in the past and leased space to 

Mullin's trucking business. Hove stated that he had seen the 

snowmobiles several times in the business space that he leased to 

Mullin. 
Based on Hove1 s affidavit, a search warrant was issued and 

executed at the premises that Mullin leased from Hove. While 

searching the premises, law enforcement officers found two 

snowmobiles fitting the descriptions of the stolen snowmobiles. 

On February 14, 1994, Mullin was initially charged by 

information with felony theft, in violation of 8 45-6-301(3), MCA, 

for purposely or knowingly obtaining control over property stolen 

by another. On March 29, 1994, Mullin was charged by amended 

information with felony theft, in violation of 1 45-6-301 (3) (b) , 

MCA, for purposely or knowingly obtaining control over property 

stolen by another and then concealing it, or in the alternative, 

with felony theft, in violation of 1 45-6-301 (1) (b) , MCA, for 

purposely of knowingly exerting unauthorized control over another's 

property and then concealing it. 

Mullin argued that the acts alleged in the State's information 

were committed in January of 1988, and that the statute of 

limitations for prosecution based on those acts expired in January 

of 1993. Since the information and amended information were not 

filed until early 1994, he successfully contended that the statute 

of limitations for felony theft had expired and the charges should 

be dismissed. 

The State argues that the theft was a continuing course of 

conduct, and that the five-year statute of limitations for felony 

theft did not expire because Mullin continued to conceal the 

property. 
DISCUSSION 

Did the District Court err when it concluded that felony theft 

was not continuous conduct for purposes of applying the statute of 

limitations? 

When we review a district court's conclusions of law, we will 

uphold the district court if its interpretation of the law was 

correct. In re Marriage of Barnard (1994), 264 Mont. 103, 106, 870 

P.2d 91, 93, (citing In re Marriage of Burris (1993), 258 Mont. 

Theft is defined, in pertinent part, in § 45-6-301, MCA, which 

provides : 

(1) A person commits the offense of theft when the 

person purposely or knowingly obtains or exerts 

unauthorized control over property of the owner and: ...a 

(b) purposely or knowingly uses, conceals, or 

abandons the property in a manner that deprives the owner 

of the property . . . . . . . (3) A person commits the offense of theft when the 

person purposely or knowingly obtains control over stolen 

property knowing the property to have been stolen by 

another and: . . . . (b) purposely or knowingly uses, conceals, or 

abandons the property in a manner that deprives the owner 

of the property . . . . 

Section 45-1-205(2) (a), MCA, provides that the statute of 

limitations for a felony, with the exception of homicide, is five 

years from the time it is committed. Section 45-1-205(7), MCA, 

provides that: 

An offense is committed either when everv element 

occurs or, when the offense is based upon a continuing 

course of conduct, at the time when the course of conduct 
is terminated. Time starts to run on the day after the 

offense is committed. 

(Emphasis added. ) 

We have held that " [sltatutes of limitation in criminal 

matters are to be liberally interpreted in favor of repose." State 

v. Hamilton (1992), 252 Mont. 496, 500, 830 P.2d 1264, 1267 (citing 

Toussie v. United States (1970), 397 U.S. 112, 115, 90 S. Ct. 858, 

860, 25 L. Ed. 2d 156, 161). 

The substantive criminal statute in this case is § 45-6-301, 

MCA, which pertains to felony theft. Mullin argues that, based on 

the allegations in the information and Hove's affidavit, the 

offense of theft was committed on January 12, 1988. Both 

informations and the affidavit allege that the snowmobile thefts 

occurred on that date. Mullin contends that since all elements 

constituting felony theft occurred on January 12, 1988, the statute 

of limitations, pursuant to §§ 45-1-205 (2) (a) and -205 (7), MCA, 

began to run on January 13, 1988, and expired on January 13, 1993. 

Section 45-1-205 (8) , MCA states that [a] prosecution is 

commenced either when an indictment is found or an information or 

complaint is filed. In this case, informations were not filed 

against Mullin until February 14 and March 29, 1994, over six years 

after Mullin contends the offense was committed. He argues that 

since the statute of limitations was not tolled, the charges 

against him must be dismissed because they are untimely. 

The State, on the other hand, argues that felony theft, in 

violation of § 45-6-301, MCA, is a continuing course of conduct and 
that the offense was not yet llcommittedll pursuant to § 45-1-205(7), 

MCA, until the stolen property was discovered pursuant to the 

execution of the State's search warrant. Therefore, the five-year 

statute of limitations for felony theft had not yet expired. We 

disagree. 

We held in Hamilton that: 

A particular offense should not be construed as 

continuing I1unless the ex~licit lansuase of the 

substantive criminal statute compels such a conclusion, 

or the nature of the crime involved is such that [the 

legislature] must assuredly have intended that it be 

treated as a continuing one." 

Hamilton, 830 P.2d at 1267 (quoting Toussie, 397 U.S. at 115, 

90 S. Ct . at 860) (emphasis added) . The plain language of 

§ 45-6-301, MCA, does not state that theft is a continuing offense. 

Nor does the nature of the crime compel a conclusion that the 

Legislature intended that this crime be treated as continuing. 

We have also held that " [aln exception to a general statute of 

limitations cannot be enlarged beyond that which its plain language 

imports . . . . " Hamilton, 830 P.2d at 1268 (citing State v. 

Clemens (1910), 40 Mont. 567, 569, 107 P. 896, 897). 

Other courts have held that theft is not a continuing offense. 

The Kansas Supreme Court has held that I1[t]he crime of theft . . . 

[by obtaining unauthorized control over property] is not a 

continuing offense." State v. Palmer (Kan. 1991), 810 P.2d 734, 

741 (citing State v. Gainer (Kan. 1980), 608 P.2d 968). In ~ainer, 

the Kansas Supreme Court relied on People v. Steinmann (Ill. App. 

Ct. 1978), 373 N.E.2d 757, in which the Illinois Court of Appeals 
stated that "'exerting unauthorized control over property'I1 was not 

a continuing offense. Gainer, 608 P.2d at 971 (quoting Steinmann, 

373 N.E.2d at 762). 

In State v. Webb (Fla. 19751, 311 So. 2d 190, the Second 

District Court of Appeal of Florida, in reliance on the U.S. 

Supreme Court's decision in Toussie, held that 

the crime of receiving and concealing stolen property is 

not a continuing offense and that the statute of 

limitations begins to run when the crime is complete, to 

wit: when the property is received and concealed with 

the knowledge that the same is stolen. 

Webb, 311 So. 2d at 191. 

While other courts, based on the language in their state's 

criminal codes, have held otherwise, see State v. Lodermeier 

(S.D. 1992), 481 N.W.2d 614; State v. Lawrence (Minn. 1981), 312 

N.W.2d 251, we conclude that the holdings by the Kansas, Illinois, 

and Florida Courts better reflect the limitations imposed by our 

prior decision in Hamilton and the U.S. Supreme Court's decision in 

Toussi e. 

To accept the construction of § 45-6-301, MCA, suggested by 

the State would be to hold, in effect, that there is no statute of 

limitations applicable to the crime of theft unless the stolen 

property is abandoned. We decline to do so. Such an extreme 

departure from the plain language of our statute of limitations 

found at § 45-1-205 (2) (a) , MCA, is better left to the Legislature. 

We conclude that the District Court was correct in its 

interpretation of the law. 
The judgment of the District Court is affirmed. 

I We concur: 

1 Justice John C. Harrison did not participate in this decision.