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, 1994Justice 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'sApril 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 concludedthat felonytheft

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, inviolation 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 knowinglyexerting unauthorized controloveranother's property and then concealing it. Mullin argued that the acts alleged in the State'sinformation were committed in January of 1988, and that the statute of limitations forprosecutionbased 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-yearstatute 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'sconclusions of law,we will uphold the district court if its interpretation of the law was correct. In reMarriage ofBarnard (1994),264 Mont. 103, 106, 870 P.2d 91, 93, (citing In re Marriage of Burris (1993), 258 Mont.

Theft is defined, inpertinentpart, 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 abandonstheproperty inamanner that deprives the owner of the property 

## . . .

. 

## . . . (3) A person commits the offense of theft when the personpurposelyorknowinglyobtainscontrol over stolen property knowing the property to have been stolen by another and:



### . 

## . . . (b) purposely or knowingly uses, conceals, or abandons theproperty inamanner 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 timewhen the course of conductis 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 tobe liberally interpreted in favor of repose." State

v. Hamilton (1992),252Mont. 496,500, 830 P.2d 1264, 1267 (citing Toussiev. 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 felonytheft occurredonJanuary 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 againstMullinuntil February 14and 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, isa continuing course of conduct andthat 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'ssearchwarrant. 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 (quotingToussie, 397U.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 continuingoffense. 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 

### " [alnexception to a general statuteof limitations cannotbe enlargedbeyond thatwhich itsplain language imports 

## . . . 

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

### v. Clemens (1910),40 Mont. 567, 569, 107 P. 896, 897). Other courtshave held that theft isnot a continuingoffense. The Kansas Supreme Court has held that I1[t]hecrime 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 Appealsstated that "'exertingunauthorized control overproperty'I1 was not

a continuing offense. Gainer, 608 P.2dat 971 (quotingSteinmann, 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'sdecision 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 runwhen 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 Hamiltonand the U.S.SupremeCourt's decision in Toussie. 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.