COCODE

16-5-401. Limitation for commencing criminal proceedings, civil infraction proceedings, and juvenile delinquency proceedings - definitions.

Statute text

(1) (a) Except as otherwise provided by statute applicable to specific offenses, delinquent acts, or circumstances, no adult person or juvenile shall be prosecuted, tried, or punished for any offense or delinquent act unless the indictment, information, complaint, or petition in delinquency is filed in a court of competent jurisdiction or a summons and complaint or penalty assessment notice is served upon the defendant or juvenile within the period of time after the commission of the offense or delinquent act as specified below:

Murder, kidnapping, treason, any sex offense against a

child, and any forgery regardless of the penalty provided: No limit

Attempt, conspiracy, or solicitation to commit murder;

attempt, conspiracy, or solicitation to commit kidnapping;

attempt, conspiracy, or solicitation to commit treason;

attempt, conspiracy, or solicitation to commit any sex

offense against a child; and attempt, conspiracy, or

solicitation to commit any forgery regardless of the

penalty provided: No limit

Vehicular homicide, except as described in subsection

(1)(a.5) of this section; leaving the scene of an

accident that resulted in the death of a person: Five years

Other felonies: Three years

Misdemeanors: Eighteen months

Class 1 and 2 misdemeanor traffic offenses: One year

Petty offenses: Six months

(a.5) The period of time during which an adult person or juvenile may be prosecuted for the offense of vehicular homicide, as described in section 18-3-106, C.R.S., and leaving the scene of an accident that resulted in the death of a person, as described in section 42-4-1601 (2)(c), C.R.S., when both offenses are alleged to have occurred as part of the same criminal episode in the same indictment, information, complaint, or petition in delinquency filed in a court of competent jurisdiction is ten years.

(b) Repealed.

(I) "Delinquent act" has the same meaning as defined in section 19-2.5-102.

(II) "Juvenile" has the same meaning as set forth in section 19-1-103.

(III) "Petition in delinquency" means any petition filed by a district attorney pursuant to section 19-2.5-502.

(IV) "Sex offense against a child" means any "unlawful sexual offense", as defined in section 18-3-411 (1), C.R.S., that is a felony.

(1.5) (a) Except as otherwise provided in paragraph (b) of this subsection (1.5), the provisions of paragraph (a) of subsection (1) of this section concerning sex offenses against children shall apply to offenses and delinquent acts committed on or after July 1, 1996.

(b) The provisions of paragraph (a) of subsection (1) of this section concerning sex offenses against children shall apply to an offense or delinquent act committed before July 1, 1996, if the applicable statute of limitations, as it existed prior to July 1, 2006, has not yet run on July 1, 2006.

(c) It is the intent of the general assembly in enacting the provisions of paragraph (a) of subsection (1) of this section concerning sex offenses against children to apply an unlimited statute of limitations to sex offenses against children committed on or after July 1, 1996, and to sex offenses against children committed before July 1, 1996, for which the applicable statute of limitations in effect prior to July 1, 2006, has not yet run on July 1, 2006.

(2) The time limitations imposed by this section shall be tolled if the adult offender or juvenile is absent from the state of Colorado, and the duration of such absence, not to exceed five years, shall be excluded from the computation of the time within which any complaint, information, indictment, or petition in delinquency must otherwise be filed or returned.

(3) (a) The period within which a prosecution must be commenced does not include any period in which a prosecution is pending against the adult defendant or juvenile for the same conduct, even if the indictment, information, complaint, or petition in delinquency which commences the prosecution is quashed or the proceedings thereon are set aside or are reversed on appeal.

(b) The period within which a prosecution must be commenced does not include any period in which a prosecution is pending against the adult defendant or juvenile for the same conduct, even if filed in a court without jurisdiction, when based on a reasonable belief the court possesses jurisdiction.

(4) When an offense or delinquent act is based on a series of acts performed at different times, the period of limitation prescribed by this code or by the "Colorado Securities Act", article 51 of title 11, C.R.S., starts at the time when the last act in the series of acts is committed.

(4.5) The period within which a prosecution must be commenced begins to run upon discovery of the criminal act or the delinquent act for:

(a) Offenses relating to the "Uniform Commercial Code", pursuant to part 5 of article 5 of title 18, C.R.S.;

(b) Cybercrime, pursuant to article 5.5 of title 18;

(d) Theft of trade secrets, pursuant to section 18-4-408, C.R.S.;

(e) Defacing or destruction of written instruments, pursuant to section 18-4-507, C.R.S.;

(f) Criminal simulation, pursuant to section 18-5-110, C.R.S.;

(g) Obtaining signature by deception, pursuant to section 18-5-112, C.R.S.;

(h) Criminal impersonation, pursuant to section 18-5-113, C.R.S.;

(i) Offering a false instrument for recording, pursuant to section 18-5-114, C.R.S.;

(j) Dual contracts to induce loan, pursuant to section 18-5-208, C.R.S.;

(k) Issuing a false financial statement or obtaining a financial transaction device by false statements, pursuant to section 18-5-209, C.R.S.;

(l) Unlawful activity concerning the selling of land, pursuant to section 18-5-302, C.R.S.;

(m) Offenses relating to equity skimming, pursuant to part 8 of article 5 of title 18, C.R.S.;

(m.5) Offenses relating to identity theft, pursuant to part 9 of article 5 of title 18, C.R.S.;

(n) Offenses relating to bribery and corrupt influences, pursuant to part 3 of article 8 of title 18, C.R.S.;

(o) Offenses relating to abuse of public office, pursuant to part 4 of article 8 of title 18, C.R.S.;

(p) Offenses relating to perjury, pursuant to part 5 of article 8 of title 18, C.R.S.;

(q) Offenses relating to the "Colorado Organized Crime Control Act", pursuant to article 17 of title 18, C.R.S.;

(r) Unlawful concealment of transactions, pursuant to section 11-107-105, C.R.S.;

(s) Embezzlement or misapplication of funds, pursuant to section 11-107-107, C.R.S.;

(t) Unlawful acts or omissions relating to financial institutions, pursuant to section 11-107-108, C.R.S.;

(u) Repealed.

(v) Criminal offenses relating to savings and loan associations, pursuant to section 11-41-127;

(w) Criminal offenses relating to securities fraud, pursuant to part 5 of article 51 of title 11;

(x) Insurance fraud, pursuant to section 18-5-211;

(y) Tampering with a deceased human body, pursuant to section 18-8-610.5;

(z) Abuse of a corpse, pursuant to section 18-13-101; and

(aa) Criminal offenses relating to misuse of gametes, pursuant to section 18-13-131.

(5) The period of time during which an adult person or juvenile may be prosecuted shall be extended for an additional three years as to any offense or delinquent act charged under sections 18-8-302, 18-8-303, 18-8-306, 18-8-307, 18-8-402, 18-8-406, 18-8-407, 39-21-118, and 39-22-621 (3), C.R.S.

(6) Except as otherwise provided in paragraph (a) of subsection (1) of this section pertaining to sex offenses against children or felony sexual assault in violation of section 18-3-402, C.R.S., the period of time during which an adult person or juvenile may be prosecuted shall be extended for an additional seven years as to any offense or delinquent act charged under section 18-6-403, C.R.S., or charged as criminal attempt, conspiracy, or solicitation to commit any of the acts specified in said sections.

(7) When the victim at the time of the commission of the offense or delinquent act is a child under fifteen years of age, the period of time during which an adult person or juvenile may be prosecuted shall be extended for an additional three years and six months as to a misdemeanor charged under section 18-3-404, C.R.S., or criminal attempt, conspiracy, or solicitation to commit such a misdemeanor.

(8) (a) Except as otherwise provided in paragraph (a) of subsection (1) of this section pertaining to sex offenses against children or felony sexual assault in violation of section 18-3-402, C.R.S., and except as otherwise provided in paragraphs (a.3) and (a.5) of this subsection (8), the period of time during which an adult person or juvenile may be prosecuted shall be ten years after the commission of the offense or delinquent act as to any offense or delinquent act:

(I) Charged under section 18-3-403, C.R.S., as said section existed prior to July 1, 2000, or section 18-6-403, C.R.S.;

(II) Charged as a felony under section 18-3-404, C.R.S.; or

(III) Charged as criminal attempt, conspiracy, or solicitation to commit any of the offenses specified in subparagraphs (I) and (II) of this paragraph (a).

(a.3) Except as otherwise provided in paragraph (a) of subsection (1) of this section concerning sex offenses against children or felony sexual assault in violation of section 18-3-402, C.R.S., if the victim at the time of the commission of an offense or delinquent act is a child under eighteen years of age, the period of time during which an adult person or juvenile may be prosecuted shall be ten years after such victim reaches the age of eighteen years as to any offense or delinquent act:

(I) Charged as a felony under section 18-3-403, C.R.S., as said section existed prior to July 1, 2000, or section 18-3-404, C.R.S.; or

(II) Charged as criminal attempt, conspiracy, or solicitation to commit any of the offenses specified in subparagraph (I) of this paragraph (a.3).

(a.5) Except as otherwise provided in paragraph (a) of subsection (1) of this section concerning sex offenses against children or felony sexual assault in violation of section 18-3-402, C.R.S., in any case in which the identity of the defendant or juvenile is determined, in whole or in part, by patterned chemical structure of genetic information, and in which the offense has been reported to a law enforcement agency, as defined in section 26-1-114 (3)(a)(III)(B), C.R.S., within ten years after the commission of the offense, there shall be no limit on the period of time during which a person may be prosecuted after the commission of the offense as to any offense or delinquent act charged:

(I) (Deleted by amendment, L. 2016.)

(II) Under section 18-3-403, C.R.S., as said section existed prior to July 1, 2000; or

(III) (Deleted by amendment, L. 2016.)

(IV) As criminal attempt, conspiracy, or solicitation to commit any of the offenses specified in subparagraph (II) of this paragraph (a.5).

(a.7) (I) Except as otherwise provided in paragraph (a) of subsection (1) of this section pertaining to sex offenses against children and except as otherwise provided in paragraphs (a.3) and (a.5) of this subsection (8), the period of time during which an adult person or juvenile may be prosecuted shall be twenty years after the commission of the offense or delinquent act as to any offense or delinquent act charged as a felony under section 18-3-402, C.R.S., or as criminal attempt, conspiracy, or solicitation to commit a felony under section 18-3-402, C.R.S.

(II) Except as otherwise provided in paragraph (a) of subsection (1) of this section concerning sex offenses against children, if the victim at the time of the commission of an offense or delinquent act is a child under eighteen years of age, the period of time during which an adult person or juvenile may be prosecuted shall be twenty years after such victim reaches eighteen years of age as to any offense or delinquent act charged as a felony under section 18-3-402, C.R.S., or as criminal attempt, conspiracy, or solicitation to commit a felony under section 18-3-402, C.R.S.

(III) Except as otherwise provided in paragraph (a) of subsection (1) of this section concerning sex offenses against children, in any case in which the identity of the defendant or juvenile is determined, in whole or in part, by patterned chemical structure of genetic information, and in which the offense has been reported to a law enforcement agency, as defined in section 26-1-114 (3)(a)(III)(B), C.R.S., within twenty years after the commission of the offense, there shall be no limit on the period of time during which a person may be prosecuted after the commission of the offense:

(A) As to any offense or delinquent act charged as a felony under section 18-3-402, C.R.S.;

(B) Under any other criminal statute if the offense is a felony or would be a felony if committed by an adult and is based on the same act or series of acts arising from the same criminal episode as the offense or delinquent act charged as a felony under section 18-3-402, C.R.S.; except that this sub-subparagraph (B) does not apply if the court finds that there is no probable cause for the felony under section 18-3-402, C.R.S.; or

(b) This subsection (8) shall apply to offenses and delinquent acts committed on or after July 1, 1984; except that subparagraph (III) of paragraph (a.5) of this subsection (8) applies to offenses and delinquent acts committed on or after July 1, 2011.

(9) Notwithstanding the provisions of paragraph (a) of subsection (1) of this section, the period of time during which an adult person or juvenile may be prosecuted shall be five years after the commission of the offense or delinquent act as to a misdemeanor charged under section 18-3-404, C.R.S., or criminal attempt, conspiracy, or solicitation to commit such a misdemeanor. This subsection (9) shall apply to offenses and delinquent acts committed on or after January 1, 1986.

(10) Notwithstanding the provisions of paragraph (a) of subsection (1) of this section, the period of time during which an adult person or juvenile may be prosecuted shall be three years after the date of the affected election as to a charge of any violation of any provision of the "Fair Campaign Practices Act", article 45 of title 1, C.R.S., or any criminal attempt, conspiracy, or solicitation to violate any provision of the "Fair Campaign Practices Act". This subsection (10) shall apply to offenses and delinquent acts committed on or after July 1, 1991.

(11) Notwithstanding the provisions of paragraph (a) of subsection (1) of this section, the period of time during which an adult person or juvenile may be prosecuted shall be three years after the discovery of the offense or delinquent act as to any offense or delinquent act charged under section 18-4-408, C.R.S. This subsection (11) shall apply to offenses and delinquent acts committed on or after July 1, 1998.

(12) The applicable period of limitations specified in subsection (1) of this section shall not apply to charges of offenses or delinquent acts brought to facilitate the disposition of a case, or to lesser included or non-included charges of offenses or delinquent acts given to the court or a jury at a trial on the merits, by the accused.

History

Source: L. 72: R&RE, p. 218, 1. C.R.S. 1963: 39-5-401. L. 75: (5) added, p. 608, 1, effective May 15. L. 81: (1) amended, p. 890, 2, effective July 1; (5) amended, p. 1879, 1, effective July 1. L. 82: (6) and (7) added, p. 314, 2, effective July 1; (1)(b) amended, p. 655, 4, effective January 1, 1983. L. 85: (1)(b) repealed, p. 1359, 8, effective June 28; (6) amended, p. 616, 5, effective July 1. L. 87: (1)(a) amended, p. 1495, 4, effective July 1; (6) and (7) amended and (8) and (9) added, p. 618, 1, effective July 1. L. 89: (1)(a) amended, p. 827, 34, effective July 1. L. 90: (1)(a) amended, p. 985, 6, effective April 24. L. 91: (10) added, p. 646, 3, effective May 29; (1)(a) amended and (4.5) added, p. 403, 3, effective June 6. L. 92: (4.5) amended, p. 400, 7, effective June 3. L. 93: (6) and (8) amended, p. 1726, 4, effective July 1. L. 94: (6) and (7) amended, p. 1049, 3, effective July 1. L. 95: (2) amended, p. 462, 1, effective July 1. L. 98: (4.5) amended and (11) added, p. 156, 2, effective July 1; (10) amended, p. 819, 17, effective August 5. L. 2000: (12) added, p. 454, 10, effective April 24; (6) and (8)(a)(I) amended, p. 710, 47, effective July 1. L. 2001: Entire section amended, p. 730, 2, effective July 1; (8)(a) amended and (8)(a.5) added, p. 1057, 1, effective July 1. L. 2002: (8)(a) amended and (8)(a.3) added, p. 1127, 1, effective June 3. L. 2003: (3) amended, p. 973, 4, effective April 17; (4) amended, p. 1325, 1, effective July 1; (4.5)(r) to (4.5)(u) amended, p. 1209, 19, effective July 1. L. 2006: (1)(a), (1)(c), (6), (7), (8)(a), (8)(a.3), and (8)(a.5) amended and (1.5) added, p. 410, 1, effective July 1. L. 2009: (1)(a) amended, (HB 09-1081), ch. 302, p. 1609, 1, effective July 1; (4.5)(m.5) added, (SB 09-093), ch. 326, p. 1738, 3, effective July 1. L. 2013: IP(4.5) and (4.5)(t) amended and (4.5)(u) repealed, (SB 13-154), ch. 282, p. 1486, 64, effective July 1; (4.5)(u) and (4.5)(v) amended and (4.5)(w) added, (SB 13-229), ch. 272, p. 1427, 3, effective July 1. L. 2014: (1)(a) amended and (1)(a.5) added, (SB 14-213), ch. 344, p. 1535, 2, effective July 1; (8)(a.5) and (8)(b) amended, (SB 14-059), ch. 58, p. 260, 1, effective July 1. L. 2016: (6), (8)(a), (8)(a.3), and (8)(a.5) amended and (8)(a.7) added, (HB 16-1260), ch. 363, p. 1514, 1, effective July 1. L. 2017: (4.5)(v) and (4.5)(w) amended and (4.5)(x) added, (HB 17-1048), ch. 68, p. 215, 2, effective August 9. L. 2018: (4.5)(b) amended, (HB 18-1200), ch. 379, p. 2292, 3, effective August 8. L. 2020: (4.5)(w) and (4.5)(x) amended and (4.5)(aa) added, (HB 20-1014), ch. 238, p. 1156, 6, effective September 14; (4.5)(w) and (4.5)(x) amended and (4.5)(y) and (4.5)(z) added, (HB 20-1148), ch. 100, p. 388, 3, effective September 14. L. 2021: (1)(c)(I), (1)(c)(II), and (1)(c)(III) amended, (SB 21-059), ch. 136, p. 712, 22, effective October 1; (1)(a) amended, (SB 21-271), ch. 462, p. 3163, 172, effective March 1, 2022. L. 2022: (1)(a) amended, (HB 22-1229), ch. 68, p. 341, 13, effective March 1.

Annotations

Editor's note: (1) Amendments to this section by HB 01-1187 and HB 01-1344 were harmonized. Amendments to subsection (4.5)(u) by Senate Bill 13-154 and Senate Bill 13-229 were harmonized.

(2) Section 4(2) of chapter 100 (HB 20-1148), Session Laws of Colorado 2020, provides that the act changing subsection (4.5) applies to offenses committed on or after September 14, 2020, and all offenses committed prior to September 14, 2020, for which the statute of limitations has not expired.

(3) Section 47 of chapter 68 (HB22-1229), Session Laws of Colorado 2022, provides that the act amending this section is effective March 1, 2022, but the governor did not approve the act until April 7, 2022.

Annotations

Cross references: For the "Uniform Commercial Code", see title 4.

Annotations

ANNOTATION

Annotations

Law reviews. For article, "Criminal Procedure in Colorado -- A Summary and Recommendations for Improvement", see 22 Rocky Mt. L. Rev. 221 (1950). For article, "Colorado Criminal Procedure -- Does It Meet the Minimum Standards?", see 28 Dicta 14 (1951). For comment on Bustamante v. District Court, see 31 Rocky Mt. L. Rev. 235 (1959). For article, "One Year Review of Criminal Law and Procedure", see 40 Den. L. Ctr. J. 89 (1963). For article, "Review of New Legislation Relating to Criminal Law", see 11 Colo. Law. 2148 (1982).

Annotator's note. Since 16-5-401 is similar to repealed 39-1-3, CRS 53, CSA, C. 48, 446, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

There is no ex post facto violation where the legislature extends the statute of limitations period for prosecutions not yet time-barred as of the date of the extension. When the general assembly enacted subsection (8)(a.5) in July 2001 and extended the statute of limitations indefinitely for sexual assaults committed after July 1, 1991, that meet the identity and reporting criteria of subsection (8)(a.5), prosecution of the charges against defendant was not yet time-barred. People v. Hicks, 262 P.3d 916 (Colo. App. 2011).

Civil and criminal statutes of limitation distinguished. Statutes of limitation in criminal cases create a bar to the prosecution, while in civil cases they are merely statutes of repose. Bustamante v. District Court, 138 Colo. 97, 329 P.2d 1013 (1958).

Section limits power of courts to proceed. In criminal cases the state has declared it will not prosecute crimes after the period has run, hence has limited the power of the courts to proceed in the matter as an indictment or information which shows on its face that the prosecution of the offense charged is barred by limitations. Bustamante v. District Court, 138 Colo. 97, 329 P.2d 1013 (1958).

The phrase "discovery of the criminal act" means the point at which the victim or the state knew or through the exercise of reasonable diligence should have known of the facts establishing the elements of the crime at issue. People v. Cito, 2012 COA 221, 310 P.3d 256.

The time within which an offense is committed is a jurisdictional fact in all cases subject to limitation. Bustamante v. District Court, 138 Colo. 97, 329 P.2d 1013 (1958).

Thus, indictment must allege offense within limitation or exceptions. The act averred in an indictment must appear to have been committed within the period prescribed by the statute of limitations or it is necessary to allege the exception that relieves it from the bar of the statute of limitations, such as that a defendant was a fugitive from justice during all or a part of the period of limitation. Bustamante v. District Court, 138 Colo. 97, 329 P.2d 1013 (1958).

Exceptions in the statute must be negatived by the people in an indictment. Bustamante v. District Court, 138 Colo. 97, 329 P.2d 1013 (1958).

Otherwise the application of this section is automatic whether the crime be a felony or a misdemeanor. Bustamante v. District Court, 138 Colo. 97, 329 P.2d 1013 (1958).

And denies jurisdiction to prosecute offense not within period limited. The statute of limitations in a criminal case is not merely a defense that may be asserted at a trial as in civil matters, but denies jurisdiction to proceed to prosecute an offense not committed within the period limited. Bustamante v. District Court, 138 Colo. 97, 329 P.2d 1013 (1958), overruling Packer v. People, 26 Colo. 306, 57 P. 1087 (1899), Wentzel v. People, 55 Colo. 33, 133 P. 415 (1913), and Thorp v. People, 110 Colo. 7, 129 P.2d 296 (1942).

Where a misdemeanor indictment contains no allegation of a specific offense committed within 18 months of the day the indictment was filed, a trial court has no jurisdiction to try a defendant on the charge set forth therein. Bustamante v. District Court, 138 Colo. 97, 329 P.2d 1013 (1958), overruling Packer v. People, 26 Colo. 306, 57 P. 1087 (1899), Wentzel v. People, 55 Colo. 33, 133 P. 415 (1913), and Thorp v. People, 110 Colo. 7, 129 P.2d 296 (1942).

Indictment which fails to allege any date upon which the alleged offense was committed does not confer jurisdiction upon the trial court to consider the case. People v. Thimmes, 643 P.2d 780 (Colo. App. 1981).

When a crime is a continuing offense that is perpetrated over time, the crime continues, and the statute of limitations does not begin to run, as long as the illegal conduct continues. People v. Zuniga, 80 P.3d 965 (Colo. App. 2003).

A crime will not be considered a continuing offense unless the language of the substantive criminal statute compels such a conclusion or the nature of the crime involved is such that the legislature must surely have intended that it be treated as a continuing one. People v. Zuniga, 80 P.3d 965 (Colo. App. 2003).

The theft of money was not complete until defendant cashed the unemployment check, therefore the statute of limitations did not begin to run until said date. Issuance of the unemployment check at an earlier date did not initiate the running of the statute of limitations because the "last act" constituting theft was negotiation of the check. People v. Chavez, 952 P.2d 828 (Colo. App. 1997).

The statute of limitations is a matter of defense. Bustamante v. District Court, 138 Colo. 97, 329 P.2d 1013 (1958).

The bar of this section may be raised at any time, before or after judgment. Bustamante v. District Court, 138 Colo. 97, 329 P.2d 1013 (1958).

This section is clear, and if a defendant can bring himself under its protective cloak, he may assert his right at any time and in any manner. Bustamante v. District Court, 138 Colo. 97, 329 P.2d 1013 (1958).

It may be raised by plea of not guilty or by motion to dismiss for lack of jurisdiction. Bustamante v. District Court, 138 Colo. 97, 329 P.2d 1013 (1958).

Defendant may plead this section specially or meet the question by evidence under the general issue. Dill v. People, 94 Colo. 230, 29 P.2d 1035 (1934).

And defendant is not required to go to trial. Where prosecution of a criminal case appears upon the face of an indictment to be barred by the statute of limitations, a defendant is not required to proceed to trial and urge the statute as a defense. Bustamante v. District Court, 138 Colo. 97, 329 P.2d 1013 (1958).

A case barred from prosecution by a statute of limitation cannot be revived by subsequent legislation that acts to extend the limitation period. People v. Sheed, 702 P.2d 267 (Colo. 1985).

Because felony charges against juvenile were not filed in a court of competent jurisdiction until after statute of limitations had run, the tolling provision of subsection (3) does not affect the charges, and district court properly determined that it lacked jurisdiction based upon the statute of limitations. People v. Ware, 39 P.3d 1277 (Colo. App. 2001).

Applicability of subsections (6) and (7). Based upon the specific and explicit indication of legislative intent in 16-5-401.1, subsections (6) and (7) apply to the prosecution of offenses not already time-barred as of July 1, 1982. People v. Holland, 708 P.2d 119 (Colo. 1985).

This 1982 amendment is clear on its face and its clear intent was that it apply to prosecutions not already time barred. Holland v. District Court, 831 F.2d 940 (10th Cir. 1987), cert. denied, 485 U.S. 977, 108 S. Ct. 1271, 99 L. Ed. 2d 482 (1988).

The 1982 amendment extending the statute of limitations from a three-year period to a seven-year period for the offense of sexual assault on a child applies to all offenses which are not time-barred as of the effective date of the amendatory legislation. People v. Whitesell, 729 P.2d 985 (Colo. 1986).

Statute of limitations as amended in 2002 did not bar defendant's prosecution for charge of sexual assault on a child by one in a position of trust since the effective date clause of the 2002 bill amending the statute did not conflict with the bill's substantive amendments. People v. Boston, 214 P.3d 507 (Colo. App. 2009), overruled in People v. Summers, 208 P.3d 251 (Colo. 2009).

Flat 10-year statute of limitations applies to felony sex offenses allegedly committed against children pursuant to 18-3-411 before June 3, 2002, due to an ambiguity created in the act enacting the 2002 amendments to 18-3-411. The general statutory construction rule of lenity requires that ambiguity in the meaning of a criminal statute must be interpreted in favor of the defendant. Thus, effective date section of the 2002 legislation amending 18-3-411 and stating that the act applies to offenses committed on or after passage of the act (June 3, 2002) is controlling despite July 1, 1992 date set forth in the substantive provisions of the statute. People v. Summers, 208 P.3d 251 (Colo. 2009) (decided based upon 18-3-411 as it existed at the time the alleged crimes were committed prior to 2006 amendments) (overruling People v. Boston, 214 P.3d 507 (Colo. App. 2009)).

A defendant is absent from the state for statute of limitations purposes when he or she has been transferred by the department of corrections (DOC) to an out-of-state facility to serve out the remainder of a state sentence. People v. Butler, 2017 COA 117, 431 P.3d 643.

Applicable limitations period tolled while defendant was incarcerated by DOC in another state. Even though defendant was sent out of state by the DOC and the DOC maintained jurisdiction over him while he was in another state, he was, nonetheless, "absent" from the state. The general assembly did not include in subsection (2) language contemplating a defendant's reason for being out of the state, nor whether the defendant was out of the state voluntarily. People v. Butler, 2017 COA 117, 431 P.3d 643.

Subsection (8)(a.5) eliminates the statute of limitations for prosecution of sexual assaults committed after July 1, 1991, where the defendant's identity is determined in whole or in part by his or her DNA and the offense was reported to a law enforcement agency within 10 years after the commission of the offense. The 10-year statute of limitations in subsection (8)(a) remains in effect for any sexual assault committed between July 1, 1984, and July 1, 1991, and for sexual assaults committed after July 1, 1991, that do not satisfy the statutory criteria in subsection (8)(a.5). People v. Hicks, 262 P.3d 916 (Colo. App. 2011).

Subsection (8)(a.5) does not require that the victim be the person who reported the offense to a law enforcement agency. People v. Shores, 2016 COA 129, 412 P.3d 894.

Subsection (8)(a.5) applies when DNA evidence plays some role in establishing a defendant's participation in a sexual assault. It is not limited to just when DNA evidence "determines" the defendant's identity. The fact that defendant was considered a suspect before the DNA results does limit the application of subsection (8)(a.5). People v. Sims, 2019 COA 66, 457 P.3d 719.

Manner of proof. When the bar of the statute of limitations is raised by a plea of not guilty, proof must be made by the state showing that its right to prosecute and punish for the offense alleged is not barred. Where the state's own indictment makes the time element material there is no need of further proof. It then is merely the duty of a trial court to apply the statute and quash the indictment. Bustamante v. District Court, 138 Colo. 97, 329 P.2d 1013 (1958).

Prohibition is proper remedy. Where a trial court is without jurisdiction to try defendant under an indictment showing on its face that prosecution is barred by the statute of limitations, prohibition is the proper remedy for relief. Bustamante v. District Court, 138 Colo. 97, 329 P.2d 1013 (1958).

Section applies to offenses relating to banks. Offenses denounced by 11-11-102, relating to receipt of deposits during insolvency by banks, are felonies within the three-year limitation of this section. People v. Godding, 55 Colo. 579, 136 P. 1011 (1913).

Section also applies where felony is charged and lesser offense is proved. Where a criminal information charges grand larceny, that will not prevent the operation of this section where the offense upon conviction proves to be of a lesser grade, prosecution for which is barred by the statute. Drott v. People, 71 Colo. 383, 206 P. 797 (1922).

Defendant's request for a lesser offense instruction constituted a waiver of the statute of limitations. Subsection (12) creates an exception to the applicable statute of limitations where the defendant has requested a lesser included or nonincluded offense. People v. Lowry, 160 P.3d 396 (Colo. App. 2007).

Under subsection (12), a plea of guilty to facilitate the disposition of a case constitutes a waiver of the statute of limitations. Defendant waived her right to raise the statute of limitations as a defense to the amount of restitution ordered. People v. Wilson, 251 P.3d 507 (Colo. App. 2010); People ex rel. K.W., 2012 COA 151, 317 P.3d 1237.

Subsection (12) applies when the prosecution agreed to allow a juvenile defendant to participate in a diversion program as an alternative to prosecuting a petition for delinquency, because the diversion program was offered as an alternative to "facilitate the disposition of the case". People ex rel. K.W., 2012 COA 151, 317 P.3d 1237.

Section also applies to complaints. The statute of limitations governing criminal offenses classed as misdemeanors makes specific use of the words "indictment", "information", and "complaint". People v. Read, 132 Colo. 390, 288 P.2d 347 (1955).

"Complaint" for purposes of this section includes a felony complaint that has been filed in a county court to commence felony criminal proceedings. Higgins v. People, 868 P.2d 371 (Colo. 1994).

Indictment charging embezzlement of public money defective. Where an indictment makes a blanket charge of embezzlement of public money averring two dates, one of which is so remote as to be barred by the statute, it is defective. Bustamante v. District Court, 138 Colo. 97, 329 P.2d 1013 (1958).

In rape cases the complaint must state a specific date or time when it is alleged the transaction occurred. The district attorney may select any act upon which he will rely for a conviction, within the period prescribed in this section for felonies. Laycock v. People, 66 Colo. 441, 182 P. 880 (1919).

In a prosecution for rape where all the acts proved were within the statute of limitation, the prosecution had the right to select from among them that upon which it would rely for conviction; and in the absence of any express election from the record it will be presumed that the prosecution elected to stand by the offense it first introduced evidence to establish; and that evidence of other acts was not introduced to prove substantive offenses, but in corroboration and explanation of the evidence of the act charged. Mitchell v. People, 24 Colo. 532, 52 P. 67 (1898); Abbott v. People, 89 Colo. 121, 299 P. 1053 (1931).

Evidence of acts barred by the statute is inadmissible. In a prosecution for rape it was error to admit evidence of other acts of sexual intercourse that were barred by the statute of limitation. Bigcraft v. People, 30 Colo. 298, 70 P. 417 (1902).

It is error to permit the defendant to be cross-examined, over objection, as to alleged illicit relations with the prosecuting witness occurring more than three years prior to the filing of the information. Curtis v. People, 72 Colo. 350, 211 P. 381 (1922).

In a prosecution for rape evidence of other acts of sexual intercourse with the prosecuting witness, committed within the period of the statute of limitations, is clearly admissible. Schuette v. People, 33 Colo. 325, 80 P. 890 (1905).

And its admission is reversible error. Abbott v. People, 89 Colo. 121, 299 P. 1053 (1931).

Special verdict unnecessary. Special verdict on a plea in bar, based upon the running of the statute of limitations, is not necessary where the issue is presented to the jury under the general issue without objection. Dill v. People, 94 Colo. 230, 29 P.2d 1035 (1934).

When jury instruction on limitation period proper. Instructing the jury that they can find the defendant guilty of sexual assault on a child if they find that the evidence shows that the crime has occurred at any time within three years prior to the filing of the information is proper if evidence of only one transaction is admitted and there is some question as to the date of the incident. People v. Estorga, 200 Colo. 78, 612 P.2d 520 (1980).

Amendment of information at close of evidence was permissible where amendment related to acts occurring within the statutory limitation period, date of offense was neither a material element nor an issue at trial, and the amendment did not involve an altered accusation or require a different defense strategy from the one defendant had chosen under the initial information. People v. Metcalf, 926 P.2d 133 (Colo. App. 1996).

The statute of limitations set forth in 13-80-102, and not that in this section, applies to a theft claim brought under 18-4-405. Michaelson v. Michaelson, 923 P.2d 237 (Colo. App. 1995).

General assembly intended the discovery tolling provision of the statute of limitations to be applicable to theft committed against at-risk adults. Theft against an at-risk adult enhances a general theft crime. Accordingly, it is immaterial that the discovery tolling provision does not expressly include or exclude thefts committed against at-risk adults. People v. McKinney, 99 P.3d 1038 (Colo. 2004).

Because the discovery tolling provision of the statute of limitations, subsection (4.5)(c), applies to general theft, it also includes theft from an at-risk adult, which is an enhanced form of general theft. Accordingly, the period within which a prosecution for theft against an at-risk adult must be commenced does not begin to run until the time the victim discovers the criminal act. People v. McKinney, 99 P.3d 1038 (Colo. 2004).

Applied in People v. Bowen, 658 P.2d 269 (Colo. App. 1982); People v. Green, 658 P.2d 281 (Colo. 1983).