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Statute of Limitations: Attempted first-Degree Intentional Homicide

State v. Rodney A. Larson, 2011 WI App 106 (recommended for publication); for Larson: Chris Gramstrup; case activity

Prosecution for attempt rather than completed crime, §939.32, comes within the general limitation period in § 939.74(1). Therefore, although prosecution for homicide may be commenced at any time, § 939.74(2)(a), Larson’s prosecution for attempted first-degree intentional homicide had to be commenced within 6 years, and must be dismissed as untimely.

The court concludes that § 939.74(2)(a) is ambiguous on this point, and its ensuing analysis contains three points.

  1. Statutory history.The statutes have always treated a completed homicide (historically: “murder”) differently from attempt for limitation-period purposes. The 1988 revision, which reflects the current version, didn’t effect any change in this respect, ¶11.
  2. Foreign authorityPeople v. Edwards, 434 N.E.2d 1179 (Ill. App. Ct. 1982); Lamb v. Coursey, 243 P.3d 130 (Or. Ct. App. 2010): “Both cases conclude that, when the statute of limitations explicitly mentions the completed crime, but not the attempt, the statute does not apply to a prosecution for the attempted crime,” ¶12.
  3. Penalty structure. “If the legislature views completed first-degree intentional homicide as more serious than attempted first-degree intentional homicide for sentencing purposes, it is logical to conclude the legislature also views the completed offense as more serious for statute of limitations purposes.  It therefore follows that the legislature intended the attempted crime to have a shorter statute of limitations than the completed crime, which is one of only a small number of offenses that may be prosecuted at any time,” ¶15.
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