KOSRAE STATE COURT TRIAL DIVISION
Cite as Kosrae v. George,16 FSM Intrm. 228a (Kos. S. Ct. Tr. 2008)
STATE OF KOSRAE,
Plaintiff,
vs.
SISUMU K. GEORGE,
Defendant.
CRIMINAL CASE NO. 65-08
ORDER OF DISMISSAL
Aliksa B. Aliksa
Chief Justice
Argued: November 12, 2008
Decided: December 31, 2008
APPEARANCES:
For the
Plaintiff: Snyder H. Simon, Esq.
Assistant Attorney General
Office of the Kosrae Attorney General
P.O. Box 870
Tofol, Kosrae FM 96944
For the Defendants: Harry Seymour, Esq.
Office of the Public Defender
P.O. Box 245
Tofol, Kosrae FM 96944
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Since, under Kosrae Criminal Rule 12, any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion, this rule encompasses a motion raising a statute of limitations defense. Kosrae v. George, 16 FSM Intrm. 228a, 228d (Kos. S. Ct. Tr. 2008).
Forgery, as defined by the Kosrae State Code, is falsely making or materially altering a writing or document of apparent legal weight and authenticity, with intent to defraud, and is classified as a category one felony. Kosrae v. George, 16 FSM Intrm. 228a, 228d (Kos. S. Ct. Tr. 2008).
A felony under the Kosrae State Code is an offense punishable by imprisonment for a period of more than one year and a category one felony can carry a sentence of imprisonment not exceeding or equaling ten years, a fine not exceeding twenty thousand dollars, or both. Kosrae v. George, 16 FSM Intrm. 228a, 228d (Kos. S. Ct. Tr. 2008).
The statute of limitations is an affirmative defense which the defendant must raise either by motion under Criminal Procedure Rule 12(b) or later at trial by a plea of not guilty. Kosrae v. George, 16 FSM Intrm. 228a, 228d (Kos. S. Ct. Tr. 2008).
The statute of limitations begins to run from the commission of an offense, or when the offense is complete. Kosrae v. George, 16 FSM Intrm. 228a, 228e (Kos. S. Ct. Tr. 2008).
A prosecution is commenced when an information is filed in court. Kosrae v. George, 16 FSM Intrm. 228a, 228e (Kos. S. Ct. Tr. 2008).
The dismissal of a case is warranted when the statute of limitations applicable to the count in the criminal information elapses before the case is filed. Kosrae v. George, 16 FSM Intrm. 228a, 228e (Kos. S. Ct. Tr. 2008).
Under the Kosrae State Code, a prosecution for a felony must be commenced within three years after the alleged crime was committed but an extension of the statute of limitations is allowed when an element of the offense is fraud. Kosrae v. George, 16 FSM Intrm. 228a, 228e (Kos. S. Ct. Tr. 2008).
When the defendant was charged with two counts of forgery, both containing the element of fraud, the statute of limitations is, since fraud is an element of the crime, extended to allow prosecution to commence the action within one year of the discovery of the offense by the aggrieved party, but not in any case is the period of limitation otherwise applicable extended by more than three years. Kosrae v. George, 16 FSM Intrm. 228a, 228e (Kos. S. Ct. Tr. 2008).
Although when an element of the crime is fraud, the statute of limitations allows a prosecution to commence within one year of an aggrieved party's discovery of an offense, the limitation period cannot be extended by more than an additional three years. Kosrae v. George, 16 FSM Intrm. 228a, 228e (Kos. S. Ct. Tr. 2008).
When the statute of limitations to both counts in a criminal information had elapsed before the case was filed, the dismissal of the case is warranted. Kosrae v. George, 16 FSM Intrm. 228a, 228e (Kos. S. Ct. Tr. 2008).
The underlying reason for having a statute of limitations, which is a statutory time beyond which the action may not be brought, is that the enactment of such laws concerns the belief that there is a point beyond which a prospective defendant should no longer need to worry about the possible commencement in the future of an action against him or her and that the law disfavors stale evidence. Kosrae v. George, 16 FSM Intrm. 228a, 228f (Kos. S. Ct. Tr. 2008).
Although statutes of limitation on criminal prosecutions must be accorded a rational meaning in harmony with the obvious intent and purpose of the law, such statutes must be liberally construed in favor of the accused, and exceptions from the benefits of such statutes must be construed narrowly or strictly against the government. Kosrae v. George, 16 FSM Intrm. 228a, 228f (Kos. S. Ct. Tr. 2008).
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ALIKSA B. ALIKSA, Chief Justice:
The State of Kosrae filed a criminal information with the Court charging the Defendant, Sisumu K. George, with two counts of forgery. The matter before the Court now is the Defendant's Motion for Dismissal as to both counts brought forth by the State.
A. Procedural Background
On February 5, 2008, the State of Kosrae filed a criminal information with the Court charging the Defendant with two counts of forgery. Count one of the criminal information charged the Defendant with forgery, a violation of Title 13, Section 13.608 of the Kosrae State Code. The State alleged that "on or about February 18, 1999 at Fomseng, Lelu Municipality the defendant committed the crime of Forgery by falsely making or materially altering a writing or document of apparent legal weight and authenticity, with intent to defraud other HO Kilafwakun George." Criminal Information. Count two of the criminal information charged the Defendant again with forgery, a violation of Title 13, Section 13.608 of the Kosrae State Code. Under count two, the State alleged that "on or about April 15, 1999 at Fomseng, Lelu Municipality the defendant committed the crime of Forgery by falsely making or materially altering a writing or document of apparent legal weight and authenticity, with intent to defraud other HO Kilafwakun George." Criminal Information.
The Defendant filed a Motion for Dismissal on November 10, 2008 pursuant to Rule 12(b) of the Kosrae Rules of Criminal Procedure claiming the case must be dismissed based on the Court's lack of jurisdiction and the lapse of the applicable statutory time limitation. The State of Kosrae filed their Opposition to Defendant's Motion for Dismissal on November 12, 2008.
B. Factual Background
The State has claimed that on February 18, 1999, the Defendant fraudulently forged and executed a document claiming to bear the signatures of the Defendant's younger brothers and sisters which conveys all the ownership rights to land parcel no. 47K03 to the Defendant. See State Opp'n Mot. Attach. 1. The State of Kosrae has stated that this parcel of land is owned by the heirs of Kilafwakun George and is located in Fomseng, the Municipality of Lelu, in the State of Kosrae. The State has also claimed that on April 19, 1999, the Defendant unilaterally and fraudulently forged and executed a document purporting to bear the signatures of the Defendant's younger brothers and sisters. The document claims to convey all the ownership rights to land parcel nos. 005k07 and 005k08 to the Defendant. See State Opp'n Mot. Attach. 2. The State has indicated that these parcels of land are located in Yatkaf, Lelu Municipality, the State of Kosrae and are owned by the heirs of Kilafwakun George.
On January 25, 2008, Livinston K. George registered a complaint against the Defendant at the Central Police Station. State Opp'n Mot. Attach. 3. On January 13, 2008, Livinston George signed a statement registering his opposition to the documents alleged to have been forged. State Opp'n Mot. Attach. 4. On January 31, 2008, Harry George also signed a statement registering his objections to the alleged documents conveying the ownership rights to the land parcels to the Defendant. State Opp'n Mot. Attach. 5. The State of Kosrae has claimed that the victims in this matter became first aware of the Defendant's actions in late 2007 when they went to file an heirship petition in the Kosrae Land Court.
Rule 12 of the Kosrae Rules of Criminal Procedure governs motions before trial. The Defendant's Motion for Dismissal is a pre-trial motion and "[a]ny defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion." Kos. Crim. R. 12(b). This rule encompasses the statute of limitations defense that the Defendant has raised and is a proper motion before this Court.
The Defendant was charged on February 5, 2008 by information with two counts of forgery. Forgery, as defined by the Kosrae State Code, is "falsely making or materially altering a writing or document of apparent legal weight and authenticity, with intent to defraud." Kos. S.C. § 13.608. Forgery is classified as a "category one felony." Id. A felony under the Kosrae State Code is "an offense punishable by imprisonment for a period of more than one year" and a category one felony can carry a sentence of "imprisonment not exceeding or equaling ten years, a fine not exceeding twenty thousand dollars, or both." Kos. S.C. §§ 13.103, 13.1201.
The FSM Supreme Court trial division has stated that the "statute of limitations is an affirmative defense which the defendant must raise either by motion under Criminal Procedure Rule 12(b) or later at trial by a plea of not guilty." FSM v. Wainit, 12 FSM Intrm. 105, 108 (Chk. 2003). The Kosrae State Code has set out time limitations for beginning prosecutions of alleged crimes. See Kos. S.C. § 13.106. The Code in pertinent states:
(2) Except as otherwise provided in this Code, prosecution for other offenses are subject to the following time limitations:
(a) A prosecution for a felony must be commenced within three years after it is committed.
(b) A prosecution for a misdemeanor must be commenced within one year after it is committed.
(3) If the time limitation set forth in subsection (2) of this section has expired, a prosecution may nevertheless be commenced for:
(a) Any offense, an element of which is either fraud or a breach of fiduciary obligation, within one year of discovery of the offense by the aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is himself not a party to the offense, but in no case shall this provision extend the period of limitation otherwise applicable by more than three years.
Kos. S.C. §§ 13.106(2)(a), 13.106(2)(b), 13.106(3)(a).
The statute of limitations begins to run from the commission of an offense, or when the offense is complete. Pohnpei v. Weilbacher, 5 FSM Intrm. 431, 454 55 (Pon. S. Ct. Tr. 1992). A prosecution is commenced when an information is filed in Court. Kos. S.C. § 13.106(5); see also FSM v. Kansou, 14 FSM Intrm. 128, 131 (Chk. 2006) (stating that "FSM law provides that a prosecution commences when an information is filed"). The dismissal of a case is warranted when the statute of limitations applicable to the count in the criminal information elapses before the case is filed. FSM v. Ching Feng 767, 12 FSM Intrm. 498, 504-05 (Pon. 2004).
The Defendant has properly raised the defense of statute of limitations by his November 10, 2008 Motion for Dismissal. In the present case, the statute of limitations began to run on February 18, 1999 and April 19, 1999 for each count respectively as these are the dates of the alleged commission of the crimes. See Weilbacher, 5 FSM Intrm. at 454 55. The prosecution was commenced and the criminal information was filed on February 5, 2008. See Kos. S.C. § 13.106(5). The State charged the Defendant with forgery, a felony under the Kosrae State Code, and therefore the prosecution must be commenced within three years after the alleged crime was committed under Section 13.106(2)(a) of the Kosrae Sate Code. However, Section 13.106(3)(a) of the Kosrae State Code allows an extension of the statute of limitations when an element of the offense is fraud. The Defendant was charged with two counts of forgery, both containing the element of fraud. See Kos. S.C. § 13.608. Thus, under Section 13.106(3)(a), the statute of limitations when an element of the crime is fraud is extended to allow prosecution to commence the action within one year of the discovery of the offense by the aggrieved party, but in no case shall the period of limitation otherwise applicable be extended by more than three years. Kos. S.C. § 13.106(3)(a).
The State has argued that the victims in the case did not discover the fraudulent act by the Defendant until late 2007 and therefore have until late 2010 to commence prosecution in the case. The State, in their Opposition to Defendant's Motion for Dismissal, cite Kosrae State Code § 13.106(3)(a) to the Court in their argument that the information is not barred by the applicable statute of limitation and extension. However, the State fails to cite the last part of Section 131.106(3)(a) which states "but in no case shall this provision extend the period of limitation otherwise applicable by more than three years." (emphasis added). This part of Section 13.106(3)(a) limits the extension of statute of limitations which allows the prosecution to commence the action within one year of the discovery of the offense by the aggrieved party when an element of the crime is fraud. The applicable statute of limitations of three years set out by the Kosrae State Code for a felony shall not extend by more than an additional three years.
The aggrieved party in the present case was alleged to have discovered the forgery after the initial statute of limitations had lapsed on February 18, 2002 and April 19, 2002. The aggrieved party allegedly did not discover the forgery until "late 2007" and the one year extension from this date of discovery would be "late 2008." However, this date is later than the additional three years beyond the initial statute of limitations of February 18, 2002 and April 19, 2002 allowable by an extension. The last possible dates the information could have been filed would have been February 18, 2005 and April 19, 2005 for each count, respectively. The State of Kosrae filed the information February 5, 2008 and the statute of limitations has run in the case. Consequently, the dismissal of the case is warranted as the statute of limitations to both counts in the criminal information had elapsed before the case was filed. See Ching Feng 767, 12 FSM Intrm. at 504.
The underlying reason for having a statute of limitations, which is a statutory time beyond which the action may not be brought, is that the enactment of such laws concerns the belief that there is a point beyond which a prospective defendant should no longer need to worry about the possible commencement in the future of an action against him or her and that the law disfavors "stale evidence." The FSM Supreme Court trial division has stated that "[a]lthough statutes of limitation on criminal prosecutions must be accorded a rational meaning in harmony with the obvious intent and purpose of the law, such statutes must be liberally construed in favor of the accused, and exceptions from the benefits of such statutes must be construed narrowly or strictly against the government." FSM v. Nifon, 14 FSM Intrm. 309, 313 (Chk. 2006); Wainit, 12 FSM Intrm. at 109.
The statute of limitations applicable to both counts in the criminal information had elapsed before the State of Kosrae filed the case and therefore a dismissal of the case is warranted. Accordingly, the Defendant's Motion for Dismissal is granted and the prosecution is barred by the applicable statute of limitations.
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