Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Attorney General
Your question relates to the proper application of the statute of limitations in the prosecution of a criminal charge, i.e., a misdemeanor. In other words, what are the measuring [the one year period] points?
KRS 500.050(2) provides that "Except as otherwise expressly provided, the prosecution of an offense other than a felony must be commenced within one (1) year after it is committed." (Emphasis added).
From the express language of the statute, the statutory limitation of one year begins to run from the day the offense was committed.
Hunt v. Commonwealth, Ky., 378 S.W.2d 813 (1964) 814.
In
Bowling v. Commonwealth, Ky., 244 S.W.2d 475 (1951), the court held that in the trial of a misdemeanor the failure of the prosecution to offer proof that the alleged offense occurred within "12 months of the indictment" was reversible error. In effect the court holds that the applying of the one year limitation begins with the date the offense was committed and ends on the date the criminal action is begun. The remaining question is when does a criminal action commence?
The old cases reflect that where an indictment charges a misdemeanor the proof must show that the offense charged was committed within one year "before the finding of the indictment. " (Emphasis added). See also
Gilmore v. United States, (C.C.A. -10, 1942) 129 F.2d 199, 203, of similar import.
Ballou v. Commonwealth, 195 Ky. 722, 243 S.W. 922 (1922). The acquiring of jurisdiction of the person under indictment is not the essential stage in this context. The significant event is the effective formulation of the commonwealth's criminal charge. However, the language of the Kentucky cases reflects that the finding of the indictment, in the usual situation, includes the finding of the indictment by the grand jury, the returning of the indictment to the court in open court, and the filing of the indictment. See
Ballou v. Commonwealth, 195 Ky. 722, 243 S.W. 922 (1922) 923; and
Stinnett v. Commonwealth, 200 Ky. 297, 254 S.W. 920 (1923) 921. The usual procedure is that the grand jury finds the indictment, returns it to the court, and it is ordered filed. These events follow each other so quickly as to constitute virtually a simultaneous court event. Thus the courts refer to the entire process in the abbreviated language of "finding the indictment. "
Now let us consider the case in which the charge is expressed in terms of a warrant. The case of
Patrick v. Commonwealth, 196 Ky. 18, 244 S.W. 72 (1922) 73, is dispositive of this facet of the question. Judge Clay, for the court, wrote:
"On the other hand, if the prosecution is one which may be begun by information or warrant, the information must be filed, or the warrant placed in the hands of the officers for service, within 12 months from the commission of the offense." (Emphasis added).
Adapting the holding in Patrick, above, to the present rules of criminal procedure, we are of the opinion that a criminal prosecution commences, in terms of KRS 500.050(2), when a complaint is executed pursuant to RCr 2.02, and the magistrate issues a warrant of arrest by placing the warrant in the hands of the officer for service. See 21 Am.Jur.2d, Criminal Law, § 161, p. 228.
The early case of
Ely v. Thompson, 10 Ky. (3 A.K. Marsh) 70, 74 (1820) deals in part with the meaning of "criminal prosecutions", as it now appears in § 11, Kentucky Constitution. The court wrote: "They evidently mean any prosecution carried on in the name of the commonwealth for any crime against society."
The court, in
Butcher v. Commonwealth, Ky., 276 S.W.2d 437 (1955) 438, wrote that ". . . one charged with a misdemeanor may not be denied the right, guaranteed every accused in all criminal prosecutions, to be present in order to be heard by himself and counsel." (Emphasis added). This suggests that the charging of one of committing a misdemeanor constitutes the commencing of a criminal prosecution.
The Supreme Court, in Kirby v. Illinois, 406 U.S. 682, 32 L.Ed2d 411, 92 S. Ct. 1877 (1972), dealt with the question as to precisely when the constitutional right to counsel attaches [see Sixth and Fourteenth Amendments to Constitution of the United States]. Justice Stewart, for the court, announced the court's view that the constitutional right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. This means that a "criminal prosecution" , as mentioned in the Sixth Amendment of the Federal Constitution, commences when an adversary judicial proceeding is initiated or begun. The court defined the term "initiation of judicial criminal proceedings", at 32 L. Ed. 2d 417-418:
"The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.
"It is this point, therefore, that marks the commencement of the 'criminal prosecutions' to which alone the explicit guarantees of the Sixth Amendment are applicable."
In its most simple terms, the Supreme Court, in Kirby, above, is saying that the initiation of a criminal prosecution occurs when the government has committed itself to prosecute and it is only then that the adversary roles of government and defendant become a reality. In the Kentucky situation when the magistrate issues a warrant of arrest, upon a written complaint, by placing the warrant in the hands of the process server, the state has committed itself to prosecuting the alleged offense against the named defendant.
It can be observed that in connection with the judicial concept of the "commencement-of-criminal-action" adopted by the Kentucky Court involving both a proceeding by indictment and a proceeding by complaint-warrant, the court has observed the determining of probable cause principle before the commencement of the action. See RCr 2.04, requiring the magistrate to find probable cause as a condition to issuing a warrant of arrest, i.e., probable cause to believe that an offense has been committed and that the defendant committed it. RCr 2.04 must be read together with RCr 5.10 requiring grand jurors to find an indictment where they have received what they believe to be sufficient competent evidence to support it. From an indictment, until proven to the contrary, it can be assumed that the commonwealth's attorney has advised the grand jury, and that they so understood him, as to the necessity for probable cause in charging a criminal offense. See