10.9Statutes of Limitations

“[A] statute of limitations defense . . . in a criminal case is a nonjurisdictional, waivable affirmative defense.” People v Burns, 250 Mich App 436, 439 (2002). MCL 767.24 sets out the applicable statute of limitation for each crime.

A.Nonresident Tolling of a Statute of Limitations

The period of limitations applicable to an offense is tolled for “[a]ny period during which the party charged^[1] did not usually and publicly reside within this state[.]” MCL 767.24(11). Any time during which the party charged did not usually and publicly reside in Michigan is not counted as “part of the time within which the respective indictments may be found and filed.” MCL 767.24(11). The tolling provision “applies to any of those violations for which the limitations period has not expired at the time the extension or tolling takes effect.” MCL 767.24(12).

A trial court may retroactively apply an extended limitations period under MCL 767.24, if “the preamended version of the statute of limitations had not yet expired at the time the amended version extending the period limitations became effective[.]” People v Chesebro, 185 Mich App 412, 418-419 (1990) (the trial court should have applied the amended period of limitations, which would have allowed the charge to be filed by the victim’s 21st birthday, because the amended period of limitations became effective one month before the preamended six-year period expired).

“The tolling provision [is] all-encompassing, indicating that any period during which a defendant did not reside in Michigan could not be considered when calculating the time within which charges must be found and filed, i.e., the pertinent limitations period.” People v Kasben, 324 Mich App 1, 10 (2018). “[C]harges not yet time-barred by an existing period of limitations are subject to a new period of limitations set forth in an amended statute.” Id. at 11, citing People v Russo, 439 Mich 584, 588 (1992). In Kasben, the trial court properly refused to dismiss the CSC-I charge brought against the defendant in 2015 for conduct that occurred in 1983 because the statute of limitations was tolled when the defendant left Michigan, and the applicable statute of limitations was amended twice during that time, extending the limitations period indefinitely. Kasben, 324 Mich App at 8-11. (finding that even though the crime was subject to a six-year limitations period at the time it was committed, six years had not passed when the limitations period was first extended in 1987 to run for six years or until the victim’s 21st birthday, the limitations period was then tolled when the defendant left Michigan before the victim’s 21st birthday, and the limitations period had not yet expired before the statute was amended in 2001 to run indefinitely).

The nonresident tolling provision in MCL 767.24(11)² applies even when a defendant resides “openly and publicly” in a state other than Michigan. People v Crear, 242 Mich App 158, 163-165 (2000), overruled on other grounds People v Miller, 482 Mich 540, 561 n 26 (2008)³ (a new trial is not always required when a juror at trial would have been excusable for cause). See People v Blackmer, 309 Mich App 199, 202 (2015) (finding that because “the plain and unambiguous language of the nonresident tolling provision [of MCL 767.24] provided that the limitations period was tolled for any period in which a defendant was not customarily and openly living in Michigan”; “[d]efendant’s subjective intent [to return to Michigan] is irrelevant”).

Whether a person “usually and publicly” resides in Michigan for purposes of the tolling provision in MCL 767.24(11) is a question of fact for the jury. People v Allen, 192 Mich App 592, 597 (1992).

The tolling provision in MCL 767.24 does not violate a nonresident defendant’s constitutional rights to interstate travel and equal protection. People v James, 326 Mich App 98, 112 (2018). “The tolling provision . . . only applies when a party is not usually and publicly residing in Michigan and, therefore, it does not restrict in any way a person’s right to travel within, across, or outside of Michigan’s borders.” Id. at 104. “The Legislature distinguishes between Michigan residents and nonresidents for purposes of tolling the statute of limitations for certain crimes. There are rational grounds for doing so, including the investigation, prosecution, and, indeed, the very discovery of previously unreported crimes.” Id. at 112.

B.Factual Disputes About a Limitations Period

Factual disputes about a statute of limitations issue arising under MCL 767.24 are questions to be decided by a jury. People v Artman, 218 Mich App 236, 239 (1996). See also People v Wright, 161 Mich App 682, 686 (1987), where the Court of Appeals “liken[ed] the statute of limitations issue to the question of venue in criminal proceedings, which, although likewise bearing on the jurisdiction of the trial court, is one of fact for the jury.”

C.Waiver of a Statute of Limitations Defense

An unconditional guilty or no contest plea waives the defendant’s right to assert a statute of limitations defense, because “[t]he purpose of a criminal statute of limitations is clearly related to determining the factual guilt of a defendant.” People v Allen, 192 Mich App 592, 602 (1992). See also People v Burns, 250 Mich App 436, 441-442 (2002) (statute of limitations defense must be waived in order for a trial court to instruct a jury on lesser included offenses for which the statute of limitations has expired).