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There was no statute of limitations in common law. It is a statutory creation and is not drawn from an individual's inherent rights but from "legislative grace." In a criminal matter, the statute can be asserted at any time before or after judgment. It is incumbent on the State to prove that the prosecution is timely.
A statutory period of limitation begins to run on the day after the offense is committed. The offense is considered committed after every inclusive element has occurred or, in the case of continuing activity, after the activity has ceased. A prosecution has begun when a warrant is issued, an indictment found, or an 'information' is filed. Where the statute has not expired for a crime, but has expired for a lesser crime included within the larger offense, the defendant cannot be convicted of the lesser offense.
Various Limitations and No Limitations
Typically, periods of limitations for felonies range from three to six years; misdemeanors from eighteen months to three years, and petty offenses from six months to a year.
It is generally provided that prosecution for murder or for any crime punishable by death or life imprisonment is not subject to a chronological limitation. In some states there are other crimes with no statute of limitations such as treason, kidnapping, forgery, falsification of public records and embezzlement of public funds.
Types of Crimes
Conspiracy is considered an ongoing offense. It the conspiracy requires an overt act, the statute begins to run from the time of the last overt act committed. If no overt act is required, the limitation begins when the conspiracy's goal is accomplished.
If the conspiracy is abandoned, then the statute of limitation begins to run when the conspirators withdraw or discontinue their efforts. Since a conspiracy can continue beyond the completion of the major offense, a conspirator may be tried even though the statute on the crime itself has run out.
Ordinarily, the statute of limitations on embezzlement commences when the misappropriation occurs. In some cases however, the statute may not apply until there has been a refusal to restore funds on demand or reach some accommodation.
With respect to fraud or breach of fiduciary duty, where the pertinent statute has expired a prosecution may nevertheless be commenced within one year after the discovery of the crime by an aggrieved party. The extension of the original statute is limited, however, to three years in some jurisdictions and five years in others.
In similar fashion, where a period of limitation has run on the prosecution of some form of misconduct by a public official, prosecution may commence at any time during his term of office or period of public employment. Extension of the original limitation may not be extended more than three years in some jurisdictions; five years in others.
The period of limitation does not run when the accused is absent from the state or cannot be found within the state. Nor does it apply when the accused is a prison escapee or when he conceals the crime. As in the above scenarios, in some jurisdictions the extensions on the periods of limitations may be limited to three years or five years.
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