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12/29/94 NANCY ANDREWS SPEIGNER v. STATE

December 29, 1994

NANCY ANDREWS SPEIGNER
v.
STATE



Appeal from Dale Circuit Court. (CC-92-366 and 92-376). P. B. McLauchlin, TRIAL JUDGE.

As Amended. Rule 39(k) Motion Denied March 3, 1995. Rehearing Denied March 3, 1995. Certiorari Denied May 26, 1995. Released For Publication November 20, 1995.

Taylor, Judge. All The Judges Concur.

The opinion of the court was delivered by: Taylor

TAYLOR, JUDGE

The appellant, Nancy Andrews Speigner, pleaded guilty to 15 counts of theft of property in the first degree in violation of § 13A-8-3, Code of Alabama 1975, and 36 counts of theft of property in the second degree in violation of § 13A-8-4, Code of Alabama 1975. She was sentenced to 10 years in the penitentiary on each count, all the sentences to be served concurrently, and she now appeals from each conviction.

I

The appellant contends that the court did not have jurisdiction to accept her guilty pleas because the statutory period of limitations had expired on some of the counts.

Initially, we observe that the issue of whether the statute of limitations had expired was not presented to the trial court. However, this court has held that "the statute of limitations is a jurisdictional matter." Hines v. State, 516 So. 2d 937, 938 (Ala. Cr. App. 1987). A guilty plea waives only nonjurisdictional defects. Fuentez v. State, 627 So. 2d 1110 (Ala. Cr. App. 1993). By pleading guilty to 51 counts, the appellant did not waive his argument concerning the statute of limitations. Thus, this court can review this issue.

First, we must determine the applicable statute of limitations for the offense of theft of property. Theft of property in the first degree and theft of property in the second degree are felonies. Prosecution for a felony must be commenced within three years from the date of the offense. § 15-3-1, Code of Alabama 1975. The record reflects that in 1987 the appellant was hired as the officer manager for Daleville Real Estate Company. In 1992 the owners of the company noticed that they were experiencing a cash flow problem and initiated an audit. It was discovered that the appellant, since the beginning of her employment, had directed that the company bank's statements be mailed to a post office box registered in her name. The 51 counts of theft were based on allegations that the appellant had deposited company checks into her personal account from September 1989 to May 1992. The total amount of those checks exceeded $50,000.

The state contends in its brief that the theft was a continuous transaction and that the statutory limitations period had not run on the last theft that had been committed by the appellant, i.e., the last that check had been deposited to her account. This argument would be meritorious if the appellant was charged with one count of theft that encompassed her conduct. However, the appellant was charged with 51 different counts of theft of property. Each theft was treated as a separate transaction, and the continuous transaction theory, therefore, does not apply here.

The record reflects that the appellant was indicted on October 5, 1992, in two indictments, for 51 counts of theft of property. The indictments reflect that the first instances of theft occurred on September 1, 1989 (theft in second degree), September 9, 1989 (theft in first degree), and October 2, 1989 (theft in second degree). Clearly, action on these offenses was not initiated before the three-year limitations period had expired. Thus, the court was without jurisdiction to accept a plea or to fix sentence as to these three offenses.

Because the circuit court was without jurisdiction to accept the appellant's plea to the three counts that were outside the statutory limitations period, we must reverse the three convictions on these three offenses.

In the interest of judicial economy, we will address the remaining issues, which deal with the 48 remaining ...


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