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January 18, 1996


Appeal from the Circuit Court of Lake County. No. 95-CF-164. Honorable Raymond J. McKoski, Judge, Presiding.

Released for Publication February 21, 1996. Petition for Leave to Appeal Denied April 3, 1996.

The Honorable Justice Inglis delivered the opinion of the court: Bowman, J., concurs. Justice Thomas, concurring:

The opinion of the court was delivered by: Inglis

The Honorable Justice INGLIS delivered the opinion of the court:

Defendant, Stanley Berg, was charged by indictment on January 18, 1995, with one count of arson (720 ILCS 5/20-1(b) (West 1994)) and four counts of aggravated arson (720 ILCS 5/20-1.1(a) (West 1994)) in connection with a fire to a residence that occurred on November 16, 1988, in Lake Bluff, Illinois. The State appeals from the circuit court's order of February 28, 1995, granting defendant's motion to dismiss the aggravated arson counts because the prosecution of these charges was barred by the three-year statute of limitations governing felonies generally (see 720 ILCS 5/3-5(b) (West 1994)). We affirm and remand.

On appeal, the State contends that, under section 3-5(a) of the Criminal Code of 1961 (Code), aggravated arson is a type of arson the prosecution of which may be commenced at any time under the specific section of the limitations statute which, at the time of the court's ruling, provided: "A prosecution for first degree murder, second degree murder, involuntary manslaughter, reckless homicide, treason, arson, or forgery may be commenced at any time." (720 ILCS 5/3-5(a) (West 1994).) The State argues that arson is a lesser included offense of aggravated arson, and thus, defendant should be deemed timely prosecuted for the greater offense of aggravated arson under this particular statute--notwithstanding that the offense of aggravated arson is not enumerated in this statute.

As the trial court did, we decline to read into section 3-5(a) an offense which the legislature has not specifically enumerated there. Section 3-5(b) of the Code states:

"Unless the statute describing the offense provides otherwise, or the period of limitation is extended by Section 3-6, a prosecution for any offense not designated in Subsection (a) must be commenced within 3 years after the commission of the offense if it is a felony, or within one year and 6 months after its commission if it is a misdemeanor." (Emphasis added.) (720 ILCS 5/3-5(b) (West 1994).)

Other provisions of the statutory scheme that would extend the time for prosecution beyond the usual three-year period are inapplicable. Sections 3-5(a) and 3-5(b) have previously been determined to be precise and unambiguous because they specify the particular offenses that may be prosecuted at any time, and we see no reason to change these unambiguous legislative enactments by construction, implication, or interpretation. See People v. Edwards (1982), 105 Ill. App. 3d 822, 827, 61 Ill. Dec. 582, 434 N.E.2d 1179.

In several decisions, the appellate court has declined to engraft related offenses to the list of offenses enumerated in section 3-5(a). In People v. Edwards, the court rejected the State's argument that attempted murder was so similar to murder that it should be governed by section 3-5(a) rather than section 3-5(b). ( Edwards, 105 Ill. App. 3d at 826-27.) The court reasoned that the provisions were precise and unambiguous. In support of its conclusion regarding the clear intent of the legislature to include only those offenses specifically enumerated, the Edwards court noted that the legislature had chosen to include manslaughter in section 3-5(a) even though it was a lesser included offense of murder. ( Edwards, 105 Ill. App. 3d at 826-27.) This signified to the court that the legislature did not believe that specifying murder alone implicitly included manslaughter within its meaning. The Edwards court then concluded that attempted murder was a felony governed by the usual three-year limitations period of section 3-5(b) of the Code. Edwards, 105 Ill. App. 3d at 826.

In People v. Sifford (1993), 247 Ill. App. 3d 562, 187 Ill. Dec. 291, 617 N.E.2d 499, the reviewing court found the statutory language of section 3-5 (as well as section 3-6) of the Code certain and unambiguous and declined to look elsewhere to discern the clear meaning of the statute, but applied the statute as its plain language dictated. The Sifford court determined that indecent liberties was not one of the offenses specifically listed in section 3-5(a), nor one listed in section 3-6(d) of the Code as an offense having an extended statute of limitations. ( Sifford, 247 Ill. App. 3d at 564-65.) Section 3-6(d) extended the limitations period to within one year of the victim's attaining the age of 18 years (but in no case would the period for prosecution expire sooner than three years after the commission of the offense), when the victim was under 18 years of age at the time of the offense and where the prosecution was for criminal sexual assault, criminal sexual abuse or aggravated criminal sexual abuse, child pornography, indecent solicitation of a child, soliciting of a juvenile prostitute, juvenile pimping, or exploitation of a child. Ill. Rev. Stat. 1991, ch. 38, par. 3-6(d) (now 720 ILCS 5/3-6(d) (West 1994)).

In People v. Staton (1987), 154 Ill. App. 3d 230, 107 Ill. Dec. 398, 507 N.E.2d 62, the State argued that armed robbery and home invasion charges arose out of an underlying murder offense which was not subject to a prosecutorial limitations period under section 3-5(a) and thus all of the charges were ripe for prosecution even though they were brought seven years after the offenses were committed. The reviewing court rejected this argument, pointing out that the armed robbery and the home invasion were not offenses included within section 3-5(a) which was precise and unambiguous; thus the three-year limitations period for felonies found in section 3-5(b) was applicable. Staton, 154 Ill. App. 3d at 231-32.

When courts examine the meaning of a statutory provision, their objective is to ascertain and give effect to the legislature's intent, and, typically, the statutory language is the best indicator of the legislative intent; when that language is clear and unambiguous, courts will not read into the statute exceptions, limitations, or conditions. ( People v. Magnus (1994), 262 Ill. App. 3d 362, 365-66, 199 Ill. Dec. 73, 633 N.E.2d 869.) Even "the slightest ambiguity in a penal statute which calls for the enhancement of a penalty requires the application of a rule of lenity and the construction of the statute strictly in favor of the defendant." ( People v. Welty (1995), 275 Ill. App. 3d 10, 16, 211 Ill. Dec. 412, 655 N.E.2d 315.) Where the language of the statute is clear and unambiguous, "'it will be given effect without resorting to other aids for construction.'" People v. Boykin (1983), 94 Ill. 2d 138, 141, 68 Ill. Dec. 321, 445 N.E.2d 1174, quoting People v. Robinson (1982), 89 Ill. 2d 469, 475-76, 60 Ill. Dec. 632, 433 N.E.2d 674.

Here, the language of the statute is clear and unambiguous, and we need not resort to other aids of construction beyond the plain language of the statute--particularly when doing so would increase the seriousness of the offense. It is not for this court to tinker with a clearly written statute and supply terms which the legislature may (or may not) have intentionally omitted. We are reluctant to read into the statute any offenses other than those specifically enumerated there and, in the process, invade the province of the legislature. Concluding otherwise would tend to undermine the statutory scheme the legislature has devised and would invite judicial legislation through interpretations not now contemplated by the statutory provisions; courts would be regularly called upon to analyze the elements of each offense to determine the appropriate statute of limitations, enlarging the probability of unpredictable results and conflicting interpretations. We therefore adhere to the "plain language" rule. ...

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