concurring:
It is an elementary rule of statutory construction that the addition of a new provision in a statute by amendment is an indication of the absence of its implied or prior existence. (People v. Hicks (1987), 119 Ill. 2d 29, 34.) Absent substantial considerations to the contrary, an amendatory change in the language of a statute creates a presumption that it was intended to change the law as it theretofore existed. (Hicks, 119 Ill. 2d at 34.) Here, the legislature’s change in the statute created a presumption that aggravated arson had not previously been a crime which could be prosecuted at any time. Accordingly, I agree with the result reached by the majority in affirming the dismissal of the aggravated arson counts.
If it had not been for the recent amendment to section 3 — 5(a) clearly revealing the legislative intent to add aggravated arson to the list of crimes which can be prosecuted under that section, I would be inclined to agree with the State’s argument. Aggravated arson includes all the elements of arson and is a greater and more serious offense than arson. It is illogical to provide for a limitations period for the greater offense but not for the lesser offense. Edwards and Staton, relied upon by the majority in support of its position, are easily distinguishable and not particularly helpful here. In both of those cases, section 3 — 5(a) specified the greater offense, murder. Thus, when the defendants in those cases committed attempted murder, armed robbery and home invasion, they did not commit the offense enumerated in the statute. In this case, however, the statute specified the lesser of the two offenses and that offense was encompassed in the commission of the greater so as to make it impossible to commit aggravated arson without committing arson in the process.