
    The State of Ohio v. Dauwalter. 
    (No. 2938
    Decided April 14, 1988.)
    Court of Common Pleas of Fulton County.
    
      William R. Swigart, prosecuting attorney, for plaintiff.
    
      Sheldon Meister, for defendant.
   James E. Barber, J.

This matter came on for hearing upon the motion of defendant to dismiss, memoran-da of counsel for and against, and arguments of counsel.

Defendant’s argument is the indictment against defendant was not returned within six years of the date of the offense, which crime last occurred December 31, 1981, the indictment having been returned on January 21, 1988. R.C. 2901.13(A) provides for a six-year limitation, and subsection (B) allows for one additional year after discovery of the offense. The state, however, argues that the exception provided for in R.C. 2901.13(F) applies. R.C. 2901.13(F) provides as follows:

“The period of limitation shall not run during any time when the corpus delicti remains undiscovered.”

In this case the fraud, or corpus delicti, was discovered between April 1 and April 15, 1982. Thus, under the state’s theory, and subsection (F), the six-year limitation will not have been concluded until April 15, 1988. The indictment having been brought prior to that time, the state argues, the indictment is valid.

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 sets forth the one-year limitation, would never apply under any circumstances. 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 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 instance would be superfluous and could never be applied because the state would always have six full years from “discovery,” and this time would always eclipse the one-year restriction under subsection (B). The court can not believe the legislature intended to enact a 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), 2 Ohio App. 3d 155, 2 OBR 171, 440 N.E. 2d 1379, for the proposition that the state’s indictment is untimely. The holding in Young is twofold. First, a “five month investigatory period” is too long and an unreasonable period of time for completion of a “discovery of the offense” to come within the “one-year saving provision of R.C. 2901.13(B).” Id.

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), 26 Ohio App. 2d 6, 55 O.O. 2d 26, 268 N.E. 2d 600. In statutory construction, special provisions of the Revised Code are presumed to take precedence over general provisions. See Cincinnati v. Thomas Soft Ice Cream (1976), 54 Ohio App. 2d 61, 8 O.O. 3d 63, 374 N.E. 2d 646. Criminal laws are mandated to be strictly construed under R.C. 2901.13(A). The holding in Young makes it clear the state bears the burden of proof in a time-limitation case. In light of the express Committee Comments to H.B. No. 511 and R.C. 2901.13, which indicate the legislative intent in providing time limitations is to “discourage inefficient or dilatory law enforcement,” it appears defendant’s motion is well-taken and ought to be granted.

Finally, this court recently had occasion to consider a very similar issue of time limitation in State v. Cline (1988), Fulton C.P. No. 2907, unreported. The offenses involved were three misdemeanors, with allegations that frauds occurred in January 1983. R.C. 2901.13(A) provides for a two-year statute of limitations for misdemeanors. Clearly the statute had run by January 1985. The frauds were “discovered” sometime between May 6, 1986 and August 1986. Unless the one-year reprieve of subsection (B) applied, prosecution was barred. The information was filed on September 15, 1987. This was more than thirteen months after “discovery” of the offenses and more than fifteen days beyond the latest possible date of the “savings” aspect of subsection (B). If the two-year • limitation was entirely “tolled” under subsection (F), as was argued by the state, then the state had until August 1988 to charge the defendant. Under such interpretation, however, subsection (B) becomes a complete nullity, and does so in every conceivable situation. However, if subsection (F) is interpreted as only tolling the statute for a one-year period after the date of discovery, then the two subsections are reconciled and compatible.

Accordingly defendant’s motion is hereby sustained and the indictment in the within case is dismissed. Defendant is hereby discharged.

Defendant discharged.  