Continuing Offense Statute Limitations In Arkansas
When did the statute of limitations begin to run on the offense of theft of public benefits?
Prosecution for a Class B, C, or D felony must be commenced within three years after its commission. Ark. Code Ann. 5-1-109(b)(2) (Repl. 1997).
"A prosecution is commenced when an arrest warrant or other process is issued based on an indictment, information, or other charging instrument, provided that such warrant or process is sought to be executed without unreasonable delay." Ark. Code Ann. 5-1-109(f) (Repl. 1997).
The question before us then is:
when does the statute of limitations begin to run on the crime of theft by receiving committed by retaining possession of stolen property ?
The information filed specified that the offense was charged as a class C felony and the value of the property was stated as in excess of $ 100, so the prosecution must have been commenced within three years after the commission of the offense. Ark. Stat. Ann. 41-104(2)(b) (Repl. 1977).
For the purposes of 41-104, an offense is committed either when every element of the offense occurs, or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time the course of conduct or the defendant's complicity therein is terminated. Ark. Stat. Ann. 41-104(5) (Repl. 1977).
By the very use of the word "retains," there was a clear intention of the General Assembly to make this aspect of the crime a continuing offense.
The word "retain" means "to hold or continue to hold in possession or use; to continue to have, use, recognize, accept, etc.; to maintain in one's keeping; as to retain part of the money, one's position, one's faculties." Webster's New International Dictionary, 2d Ed.
See also, Webster's Third New International Dictionary. Thus, retaining the automobile was a continuing course of conduct. There is nothing in the definition of "receiving" in Ark. Stat. Ann. 41-2206(2) that leads to a contrary conclusion. Here again, the commentary to 41-104 makes the legislative intention quite clear by the following:
Crucial to the application of a criminal statute of limitations is the determination of when the offense is committed and when the prosecution is commenced. Subsections (5) and (6) answer these questions.
The substance of subsection (5) is that the limitations period begins to run when the defendant could first be prosecuted for the offense.
The subsection also states a special rule applicable to statutes prohibiting a continuing course of conduct. for example, if possession of an object is declared illegal, the elements of the offense are present from the moment defendant takes possession, but the limitations period does not begin to run until his possession ends.
We treated the subject of continuing offenses in Britt v. State, 261 Ark. 488, 549 S.W.2d 84.
The offense here is clearly a continuing one under the definition used there. the definition we adopted was that a continuing offense is "....a continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy; an offense which continues day by day; a breach of the criminal law, not terminated by a single act or fact, but subsisting for a definite period and intended to cover or apply to successive similar obligations or occurrences." Retaining stolen property, as defined by the statute, fits that definition.
Moreover, in Britt v. State, 261 Ark. 488, 549 S.W.2d 84 (1977), the supreme court listed several examples of continuous offenses: carrying a concealed weapon; continuous keeping of a gaming or a disorderly house; desertion and neglect to provide for family; embezzlement; engaging in business without a license; maintaining a nuisance; offenses relating to intoxicating liquors; violating a Sunday law; and obtaining a license from a state medical board by false or fraudulent representations.
With respect to the last example, the court quoted with approval from Eclectic State Medical Board v. Beatty, 203 Ark. 294, 156 S.W.2d 246 (1941): "Every time such person undertakes to practice under his license he keeps up and continues the fraud initiated when he obtained by false representations his pretended authority to practice."
Theft of public benefits is defined in Arkansas Code Annotated section 5-36-202 (Repl. 1997):
(a) a person commits theft of public benefits if he obtains or retains public benefits from the Department of Human Services or any other state agency administering the distribution of such benefits:
(1) by means of any false statement, misrepresentation, or impersonation;
(2) Through failure to disclose a material fact used in making a determination as to such person's qualifications to receive public benefits; or
(3) Receives, retains, or disposes of public benefits knowing or having reason to know that such public benefits were obtained in violation of this subchapter.
(b) Presentation of false or fictitious information or failure to disclose a material fact in the process of obtaining or retaining public benefits shall be prima facie evidence of intent to commit theft of public benefits.