The opinion of the court was delivered by
The State of Kansas appeals from an order of the district court
dismissing a complaint charging Kenneth Ray Noah with one count
of indecent liberties with a child (K.S.A. 1985 Supp. 21-3503).
The district court held the prosecution was barred
by the two-year statute of limitations in effect at the time of
the alleged offense. K.S.A. 21-3106(2) (Ensley 1981).
The defendant was originally charged in a complaint filed
January 14, 1986. The acts constituting the offense occurred on
November 23, 1985. On February 19, 1986, the defendant pled
guilty to the charge and was subsequently sentenced on March 5,
1986. On May 14, 1987, defendant filed a motion pursuant to
K.S.A. 60-1507 which was denied May 21, 1987. Following a denial
of a motion for rehearing, the defendant appealed on June 10,
1987. In an unpublished opinion, No. 61,324, filed January 11,
1988, the Court of Appeals summarily reversed defendant's
conviction based upon a jurisdictional defect in the complaint.
Thereafter, a new complaint was filed on September 19, 1988,
again alleging that the crime occurred on November 23, 1985.
Defendant does not deny that he committed the crime or that it
took place on the stated date.
On November 2, 1988, defendant sought dismissal, contending
that his prosecution was barred by the two-year statute of
limitations in effect at the time he allegedly committed the
offenses, K.S.A. 21-3106(2) (Ensley 1981). He contends that, as
the crime occurred on November 23, 1985, more than two years had
expired before the filing of the September 1988 complaint. The
State responded that the five-year statute of limitations (K.S.A.
1986 Supp. 21-3106), which became effective July 1, 1986,
applied. The district court held that the statute of limitations
was substantive, not procedural, and that the five-year statute
could not be applied retroactively in this case.
The identical issue now before this court was decided adversely
to the defendant in State v. Nunn, 244 Kan. 207
, 768 P.2d 268
(1989). In Nunn, we held:
"Statutes of limitation are measures of public
policy entirely subject to the will of the
legislature." Syl. ¶ 7.
"While it is a general rule of statutory
construction that a statute will operate
prospectively unless its language clearly indicates
the contrary, the rule is modified where the
statutory change is merely procedural or remedial in
nature and does not affect the substantive rights of
the parties." Syl. ¶ 8.
"As related to criminal law and procedure,
substantive law is that which declares what acts are
crimes and prescribes the punishment therefor;
whereas procedural law is that which provides or
regulates the steps by which one who violates a
criminal statute is tried and punished." Syl. ¶ 9.
"Criminal statutes of limitation are remedial or
procedural, not substantive, and may be applied
retroactively." Syl. ¶ 10.
"Where a statute extends the period of limitation,
the extension applies to offenses not barred on the
effective date of the amendment so that a prosecution
may be commenced at any time within the newly
established period. Such an amendment, however,
cannot operate to revive offenses that were barred at
the time of its effective date, since that would make
the statute ex post facto." Syl. ¶ 11.
Defendant here raises additional arguments which were not
asserted in Nunn and asks that we reverse Nunn. Defendant
relies upon the comments of the Kansas Judicial Council and
K.S.A. 21-3102(4) in asserting that it was the clear intention of
the legislature that criminal statutes of limitation are
substantive and prospective only in their application. K.S.A.
"This code has no application to crimes committed
prior to its effective date. A crime is committed
prior to the effective date of the code if any
essential elements of the crime as then defined
occurred before that date. Prosecutions for prior
crimes shall be governed, prosecuted, and punished
under the laws existing at the time such crimes were
It is argued that the last sentence of the foregoing section of
the statute applies to subsequent amendments to the criminal code
as well as to the original adoption of the code in 1970. We do
not agree. When the entire subsection is read in context it
appears clear that it refers to crimes committed prior to July 1,
1970, the effective date of the criminal code. Whether subsequent
amendments apply to crimes committed prior to the date of
amendment depends upon the particular amendment and statute
Next, defendant argues that the Judicial Council notes to
K.S.A. 21-3106 clearly reveal the substantive nature of the
statute. The notes provide:
"The former Kansas statutes of limitations were
treated as procedural and were contained in Article V
of Chapter 62. Since the former statutes effectively
limit the conditions under which penal liability may
be imposed, it seems appropriate to include them in
the chapter defining substantive rights and
liabilities. The practice in other codes is not
uniform. The Model Penal Code, Illinois and New
Mexico, include statutes of limitations in the
substantive codes. Minnesota and Wisconsin do not."
While it is true that the notes and comments of the Judicial
Council may be one indication of legislative intent, they do not
have the force and effect of law and are advisory only. The
inclusion of the statutes of limitation in chapter 21, the Kansas
Criminal Code, rather than in chapter 22, the Kansas Code of
Criminal Procedure, is not conclusive on the substantive versus
procedural nature of the statutes. The actual scope and effect of
the statute is controlling rather than its location in the
statute book. As we recognized in Nunn, there is a split of
authority on the question of whether changes in the length of a
criminal statute of limitations are procedural or substantive. We
adhere to our decision in Nunn that in Kansas a criminal
statute of limitations is procedural and an amendment of the
statute may be applied to criminal acts occurring prior to the
date of the amendment if the crimes charged have not been time
barred prior to that date.
The rationale for the determination that criminal statutes of
limitation are procedural rather than substantive was clearly
stated in State v. Ferrie, 243 La. 416, 144 So.2d 380
where the defendant claimed that he had a "substantial right" not
"merely a procedural right" to have the statute of limitations at
the time of the offense control. Thus, the Louisiana Supreme
Court considered whether "the amendment of the statute of
limitations increasing the time involved during which the
prosecution may be instituted deprived the accused of a
substantial right." 243 La. at 425. The court found no such right
"[O]riginally at common law there was no time
limitation barring criminal prosecutions. People v.
Bailey, 103 Misc. 366, 171 N.Y.S. 394. However,
statutory limitations generally prevail in most
states today. They have been considered to be
statutes of repose as in civil matters; as acts of
grace of the sovereign surrendering its right to
prosecute in criminal matters; as acts of amnesty
declaring that the offender may cease to preserve his
proof of innocence after the time limit has passed;
or as recognition by the state that time gradually
wears out evidence of innocence. People v. Ross,
325 Ill. 417, 156 N.E. 303; People v. Guariglia,
187 Misc. 843, 65 N.Y.S.2d 96; cf. dissent in State v.
Gehlbach, 205 La. 340, 17 So.2d 349. See Expose des
Motifs No. 6, Louisiana State Law Institute, Code of
Criminal Procedure Revision, `Title XVII, Time