COMMONWEALTH vs. FRANCIS A. ROCHELEAU.

HENNESSEY, C.J. A Worcester County grand jury returned two indictments charging the defendant, Francis A. Rocheleau, with unnatural sexual intercourse with a child under sixteen years of age. The defendant moved to dismiss the indictments, arguing that the statute of limitations had run and that a subsequent amendment extending the statutory period did not apply retroactively to the charges. A Superior Court judge, pursuant to Mass. R. Crim. P. 34, 378 Mass. 905 (1979), reported the question raised by the defendant's motion to the Appeals Court. We took the reported question on our own motion.

The parties filed a stipulation of facts for the reported question. The offenses which are subjects of the indictments allegedly occurred on or about August 15, 1977, and February 15, 1979. The indictments were returned on July 15, 1987.

Page 130

General Laws c. 277, Section 63, as amended by St. 1955, c. 781, Section 1, imposed a six-year limitation period for violations of G. L. c. 265, Section 23. The six-year period for the 1977 offense expired on August 15, 1983, and on February 15, 1985, for the 1979 offense. General Laws c. 277, Section 63, however, was amended by St. 1985, c. 123, which extended the limitation period to ten years. [Note 1] The ten-year period expired on August 15, 1987, for the 1977 offense and will expire on February 15, 1989, for the 1979 offense.

The Superior Court judge reported the following question: "Whether G. L. c. 277, Section 63, as amended by 1985 Mass. Acts c. 123, is a bar to the prosecution of July 1987 indictments alleging violations of G. L. c. 265, Section 23, which violations allegedly occurred on August 15, 1977, and February 15, 1979."

This case presents an issue distinct from that addressed in Commonwealth v. Bargeron, 402 Mass. 589 (1988), where this court, by a divided vote, applied "a subsequent statute of limitations to offenses not already time-barred when the new statute of limitations becomes effective" (emphasis added). Id. at 592.

In this case, the six-year time limitation expired in August, 1983, and February, 1985, respectively, for the two offenses. Statute 1985, c. 123, which extended the time limitation to ten years was approved on July 2, 1985, and made effective ninety days thereafter. Thus, the statute of limitations was extended by an amendment more than seven months after the indictments were time-barred under the then effective statute of limitations. The indictments cannot stand. See Bargeron, supra at 592 n.1, citing People v. Smith, 171 Cal. App. 3d 997 (1985) (prosecution was timely based on double extension of statute of limitations where each extension was effective before then applicable limitations period had run); People v. Whitesell,

Page 131

729 P.2d 985 (Colo. 1986) (amendment extending applicable statute of limitations applied to all offenses not time-barred as of its effective date); People v. Massarella, 80 Ill. App. 3d 552 (1979) (legislature can extend statute of limitations as long as original has not expired), cert. denied, 449 U.S. 1077 (1981); People v. Liebling, 36 Ill. App. 3d 1073 (1976) (court held defendant could be prosecuted under the new statute of limitations because reclassification of crimes occurred before expiration of original statutes); and other cases cited.

Prosecution of July, 1987, indictments alleging violations of G. L. c. 265, Section 23, occurring on August 15, 1977, and February 15, 1979, is barred. We answer the reported question: "Yes." The indictments must be dismissed.

So ordered.