Last week, I blogged about the lack of a statute of limitations for felony offenses in North Carolina. There is, of course, a two-year statute of limitations for misdemeanors, a matter that has been the subject of a fair amount of recent litigation. A reader posed an excellent question at the end of that post: Is the statute of limitations a defense that may be waived or does a trial court lack jurisdiction over a time-barred offense?
A recent case. As it turns out, that’s a question that courts across the country have wrestled for decades. Just last April, the Florida Supreme Court in State v. Smith, 241 So. 3d 53 (Fla. 2018), considered whether a defendant could seek relief on appeal from his conviction for a time-barred offense if he failed to raise the statute of limitations in the trial court. The Smith court concluded that though timely commencement of a prosecution was mandatory under its statute, a statute of limitations violation could be waived. Thus, the defendant in Smith, who was convicted of offenses that he alleged on appeal were time-barred, failed to preserve that issue for purposes of direct appeal.
The Supreme Court’s take. Smith relied in part on the United States Supreme Court’s reasoning in Musacchio v. United States, ___ U.S. ___, 136 S.Ct. 709, 718 (2016), a case in which the high court concluded that the five-year statute of limitations in 18 U.S.C. § 3282 provided a “nonjurisdictional defense, not a jurisdictional limit” and that a defendant could not successfully raise a statute of limitations defense under this statute the first time on appeal. The court explained:
A statute-of-limitations defense becomes part of a case only if the defendant puts the defense in issue. When a defendant presses a limitations defense, the Government then bears the burden of establishing compliance with the statute of limitations by presenting evidence that the crime was committed within the limitations period or by establishing an exception to the limitations period. . . . When a defendant fails to press a limitations defense, the defense does not become part of the case and the Government does not otherwise have the burden of proving that it filed a timely indictment. When a defendant does not press the defense, then, there is no error for an appellate court to correct—and certainly no plain error.
136 S. Ct. at 718 (2016).
Other courts have applied similar reasoning. See, e.g., James v. Galetka, 965 P.2d 567 (Utah Ct. App. 1998) (holding that criminal statutes of limitations are not jurisdictional, but are a bar to prosecution that can be waived by a knowing and voluntary guilty plea); Conerly v. State, 607 So.2d 1153 (Miss.1992) (holding that the statute of limitations in a criminal case is an affirmative defense, nonjurisdictional in character and waivable; concluding that the defendant, by his voluntary plea of guilty, waived his right to a statute of limitations defense and forfeited his right to raise the matter in a collateral proceeding).
A contrary view. Some courts, in contrast, have viewed criminal statutes of limitations as jurisdictional limitations on the power of the sovereign to act against the accused. See, e.g., State v. Escobar-Mendez, 986 P.2d 227, 230 (Ariz. Ct. App. 1999) (so characterizing the criminal statute of limitations). Under this view, such statutes restrain the power to prosecute and are noticeable for the first time on appeal. See, e.g., Waters v. United States, 328 F.2d 739, 743 (10th Cir. 1964) (so holding); State v. Stillwell, 418 A.2d 267, 271 (N.J. Super. App. Div. 1980) (concluding that there is an absolute bar to prosecution after the statute of limitations has run, and, therefore the statute may be asserted at any time, before or after judgment).
What’s the rule in NC? Perhaps because it has no statute of limitations for felonies, North Carolina’s appellate courts have seldom been called upon to declare the nature of statutes of limitations. But, in a 2014 unpublished decision, the court of appeals placed NC in the non-jurisdictional, subject-to-waiver camp. Citing antiquated state supreme cases requiring that a defendant bring a statute of limitations defense to the attention of the trial court, the court of appeals in State v. Vandyke, 237 N.C. App. 100 (2014) (unpublished), rejected the defendant’s argument that his indictment for misdemeanors more than two years after the date of the offenses (an issue he failed to raise at trial) was a jurisdictional defect for which he was entitled to relief on appeal.