dissenting.
The Court, methinks, errs. When the applicable statute of limitations had run, the State was precluded from attempting to convict O’Neill for acts allegedly committed in 1983, especially by filing an amended information which charged a crime different from the crime initially alleged in the complaint and the ensuing information. The following is an opinion which unfortunately did not attract the requisite number of votes. Notwithstanding that, the Court’s rules require that I comply with the majority, or have the opportunity to write an additional opinion. Right is right, so the saying goes in North Idaho:
The defendant, James Francis O’Neill, was convicted on a conditional plea of guilty of one count of sexually abusing a child, which is a felony. I.C. § 18-1506. According to the amended information, the sexual abuse occurred between January and June of 1983. O’Neill filed a motion in district court to dismiss the charge against him, on the ground that the applicable statute of limitations had run.1 In 1983, the year in which the crime was allegedly committed, the governing statute of limitations provided that the prosecution must act, by filing a complaint or by the finding of an indictment, within three years from the commission of the crime. I.C. § 19-402 (1972).2 The complaint, alleging that O’Neill violated I.C. §§ 18-6607 and 18-1508, was filed December 21, 1987. The prosecution filed the amended information that charged O’Neill with violating I.C. § 18-1506 on February 5, 1988. The complaint and the amended information cited to different statutory crimes, but both were brought more than three years after the alleged crime(s) occurred. Therefore, these charges would be time barred by the statute of limitations applicable to the crime when the acts allegedly occurred. However, an amendment to I.C. § 19-402 was enacted by the legislature March 22, 1985. This amendment extended the time for commencement of a prosecution, by either the filing of a complaint or the finding of an indictment, from three years to five years. I.C. § 19-402 (1985).3 The 1985 amendment extending the statute of limitations be*251came effective July 1, 1985 — before the 1972 three year statute of limitations had run on the charged crime.4 Therefore, if the 1985 amendment was applied retroactively, i.e., to crimes which were committed before July 1, 1985, the applicable statute of limitations would be five instead of three years, and the prosecution against O’Neill which began in 1987 would have been commenced before the statute of limitations had run.
I. ISSUES PRESENTED AND STANDARDS OF REVIEW
The issue presented by O’Neill is whether the prosecution was barred by the applicable statute of limitations. As this is a question of law, we apply the standard of free review. Standards of Appellate Review in State and Federal Courts, Idaho Appellate Handbook § 3.2.1 (Idaho Law Foundation, Inc.1985). Part II of this opinion deals with this statute of limitations question.
There is another issue presented by this case which we consider it necessary to discuss. This issue also presents a question of jurisdiction, which may be properly raised by an appellate court of its own initiative. State v. Lopez, 98 Idaho 581, 570 P.2d 259 (1977); State v. Mowrey, 91 Idaho 693, 429 P.2d 425 (1967). Part III, infra, will discuss I.C. § 19-1420 in relation to the amended information. The amended information alleged a different crime than the crime alleged by the complaint and original information. For the reasons discussed in Part II and Part III, I vote to vacate the judgment of conviction and remand to the district court with directions to dismiss the charge against O’Neill.
II. THE STATUTE OF LIMITATIONS
O’Neill argued before the district court that the retroactive application of the 1985 statute of limitations to the charge against him is prohibited by the provisions of I.C. § 73-101. The district court, in a written decision, determined that the longer statute of limitations was properly applied because there was no constitutional prohibition to its application. The court’s decision did not address the import of I.C. § 73-101. While the district court was correct when it determined that the application of the 1985 version of the statute of limitations does not violate the constitutional prohibition against ex post facto laws,5 it nevertheless remains to be determined whether the legislature required or intended the 1985 statute of limitations to apply to crimes which occurred in 1983. As the Washington Su*252preme Court in State v. Hodgson, 108 Wash.2d 662, 740 P.2d 848 (1987), correctly asserted:
As a general proposition, it may be stated that there is no such thing as a common law statute of limitation in criminal cases. Such statutes of limitation are matters of legislative grace; they are a surrendering by the sovereign of its right to prosecute____ [T]hey are measures of public policy only, and subject to the will of the Legislature as such____
Hodgson, 740 P.2d at 851 (footnotes omitted). The question to be resolved, then, is whether the legislature required or intended the statute of limitations as amended in 1985 to apply retroactively, i.e., to any charges for felony crimes (other than murder) committed before July 1, 1985, the effective date of the amendment.
The legislature decided long ago that statutes would not be retroactive unless the legislature explicitly demanded this application.6 No intent will therefore be inferred without an explicit command from the legislature to give a new or amended statute retroactive effect. Title 73 of the Idaho Code, entitled “General Code Provisions,” includes I.C. § 73-101, and this section clearly states:
Codes not retroactive. — No part of these compiled laws is retroactive, unless expressly so declared [by the legislature].
The 1985 amendment to the statute of limitations does not state that it is to be applied retroactively.
In 1989, the statute of limitations was amended once again. The current version of I.C. § 19-402 includes this proclamation of legislative intent:
It is the intent of the legislature that extension of the provisions of section 19-402, Idaho Code, shall apply to all cases for which the statute of limitations has not yet expired. The legislature specifically declares that it is the public policy of the state that such an extension is not an ex post facto law.
Act of April 3, 1989, ch. 270, 1989 Idaho Sess. Laws 658. The 1989 amendment requires that “[a] prosecution under § 18-1506 or § 18-1508, Idaho Code, must be commenced within five (5) years after the date the child reaches eighteen (18) years of age.” I.C. § 19-402 (1989). This amendment took effect after the 1985 version of the statute of limitations had expired on the crime O’Neill allegedly committed in 1983. Nevertheless, the State urges us to infer from the legislature’s statement of intent in 1989 that the 1985 amendment should be applied retroactively. We decline the invitation to narrowly construe the express declaration of the legislature contained in I.C. § 73-101.
Both this Court and the Court of Appeals have recognized the forceful and clear command of the legislature enshrined in I.C. § 73-101. See Mellinger v. State, 113 Idaho 31, 740 P.2d 73 (Ct.App.1987) (review denied 1987); State v. Lindquist, 99 Idaho 766, 589 P.2d 101 (1979). For very compelling reasons, stated by Chief Justice Bakes for a majority of this Court in the Lindquist opinion, we cited to I.C. § 73-101 and declined to apply an amended version of Idaho’s death penalty statute. The amendment did not affirmatively require retroactive application. We justified our decision in Lindquist with these words:
[T]he principles of law to which we must adhere today are the same principles which preserve this Court as an institution of justice according to the law — not according to the whims or visceral feelings of judges — and which protect every citizen of this state and nation from the peril of arbitrary and unbridled legislative and judicial power.
Lindquist, 99 Idaho at 772, 589 P.2d at 107.
*253This holding is also supported by the principle that criminal statutes of limitation are to be liberally construed in favor of the accused. As the United States Supreme Court explained in Toussie v. United States, 397 U.S. 112, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970):
The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature had decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity.
Toussie, 397 U.S. at 114-15, 90 S.Ct. at 859-60. For the reasons discussed above, the version of the statute of limitations in effect in 1983 applies, i.e., I.C. § 19-402 (1972), and the State is therefore precluded from prosecuting O’Neill in 1987 for an act allegedly committed in 1983 in violation of I.C. § 18-1506.
III. THE AMENDED INFORMATION AND I.C. § 19-1420
The discussion of the applicable statute of limitations is sufficient to decide this controversy. However, there is another troubling aspect to this case that requires attention. The record reveals that O’Neill was convicted on charges laid against him in an improperly amended information, and other improper procedures.
December 21,1987, the State filed a complaint alleging that O'Neill had committed the crime of lewd conduct with a minor. O’Neill waived his right to a preliminary hearing and was bound over • to district court on January 21, 1988. He was arraigned on an information charging violations of I.C. §§ 18-6607 and 18-1508 on January 22,1988. However, on January 25 the district judge accepted O’Neill’s conditional guilty plea to one count of sex abuse of a minor, I.C. § 18-1506.
Eleven days later, on February 5, the prosecution filed an amended information charging O’Neill with a violation of I.C. § 18-1506, the charge to which he had already entered his conditional plea of guilty. The district court, after reviewing the presentence report, decided on February 29 that it could no longer accept the plea bargain. O’Neill withdrew his plea of guilty, and trial on the charge alleged in the amended information was scheduled to begin March 7. That morning, O’Neill orally moved the court to dismiss the charge against him on the ground that the applicable statute of limitations had run. A written motion was submitted by O’Neill March 21, and was argued before the district court April 1.
On May 1 the trial court in a written decision denied O’Neill’s motion. June 2, O’Neill entered another conditional plea of guilty, reserving the statute of limitations issue for appeal. The district court entered a judgment of conviction and imposed a suspended sentence of five years and placed O’Neill on probation for five years. He was also ordered to serve ninety days in the Ada County jail, with work release privileges, and to provide 200 hours of service to the community. The time in jail, but no other aspect of the sentence, was suspended pending the outcome of this appeal.
Review of the lower court procedure in this case reveals a disturbing fact. On February 5 the State replaced the charge of lewd conduct with a minor, which was the charge originally in the information filed against O’Neill, with a charge of sex abuse of a minor. The State may, pursuant to I.C. § 19-1420, amend an information either in form or substance at any time before the defendant enters a plea. See State v. Thompson, 392 S.W.2d 617 (Mo. 1965), cited with approval in State v. McKeehan, 91 Idaho 808, 430 P.2d 886 (1967). The requirements of I.C. § 19-1420 are clear:
An indictment or information may be amended by the prosecuting attorney *254without leave of the court, at any time before the defendant pleads, and at any time thereafter, in the discretion of the court, where it can be done without prejudice to the substantial rights of the defendant. An information or indictment cannot be amended so as to charge an offense other than that for which the defendant has been held to answer.
The amended information must charge the same crime as charged initially. Thompson, 392 S.W.2d at 621. An information cannot be amended so as to charge an offense other than that for which the defendant has been held to answer. State v. Ranstrom, 94 Idaho 348, 351, 487 P.2d 942, 945 (1971); I.C. § 19-1420. A different and distinct offense may not be charged by way of an amended information. State v. McKeehan, 91 Idaho 808, 817, 430 P.2d 886, 895 (1967). Here, the amended information charged the defendant under a statute wholly unmentioned when O’Neill was initially charged in magistrate court. Yet, he was held to answer on this unmentioned charge.
Further, I.C. § 19-1308 provides that “[n]o information shall be filed against any person for any offense until such person shall have had a preliminary examination ... unless such person shall waive his right to such examination____” The right to a preliminary hearing is provided in art. 1, § 8 of the Idaho Constitution.7 O’Neill did waive his right to a preliminary hearing when he was charged with violating I.C. §§. 18-1508 and 18-6607. However, he did not waive his right to a preliminary hearing on a charge of violating I.C. § 18-1506. In order to obtain jurisdiction to prosecute O’Neill under § 18-1506, a complaint had to be filed after which O’Neill would have the opportunity to proceed through or waive a preliminary hearing before he could be bound over to district court. Noel v. State, 113 Idaho 92, 93, 741 P.2d 728, 729 (Ct.App.1987).
Where it is clearly shown by the appeal record that there is an absence of jurisdiction, this Court has no alternative but to remand with instructions to dismiss. For the reasons hereinabove discussed, I vote to vacate the judgment and remand with instructions to dismiss the charge against O’Neill.
. O’Neill agreed to plead guilty prior to being charged under I.C. § 18-1506 (see Part III of this opinion) in exchange for a lenient sentence recommendation by the prosecution. However, after reviewing the presentence report the court did not accept this plea. The defendant then withdrew his guilty plea and filed a motion to dismiss the charge on the ground that the statute of limitations had run. This motion was denied, and O’Neill entered a conditional guilty plea. He was convicted, sentenced, and this appeal followed.
. The 1972 version of the statute states: “A prosecution for any other felony than murder must be commenced by the filing of the complaint or the finding of an indictment within three (3) years after its commission." I.C. § 19-402 (1972).
.The 1985 version of the statute states: “A prosecution for any felony other than murder or any felony committed upon or against a minor child must be commenced by the filing of the complaint or the finding of an indictment within three (3) years after its commission. A prosecution for any felony committed upon or against a minor child must be commenced within five (5) years after the commission of the offense by the filing of the complaint or a finding of an indictment." I.C. § 19-402 (1985).
. See I.C. § 67-510, which determines the effective dates of statutes and resolutions.
. By art. I, § 10 of the United States Constitution and art. 1, § 16 of the Idaho Constitution Idaho is forbidden to pass any ex post facto law. An early but dispositive description of what laws are not proper because of the ex post facto law prohibition can be found in Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648, 650 (1798). See also Collins v. Youngblood, — U.S. -, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990).
Judge Learned Hand relied upon a "vested rights" approach to determine that, where the old statute of limitations has not run, the application of a new and longer statute of limitations does not run afoul of the ex post facto law prohibition. Falter v. United States, 23 F.2d 420 (2d Cir.1928), cert. denied, 277 U.S. 590, 48 S.Ct. 528, 72 L.Ed. 1003 (1928). This vested rights approach was finally rejected by the United States Supreme Court in Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). Vested rights analysis is inappropriate here because it is a concept borrowed from the analysis of retrospective laws in the civil context. Moreover,
[w]hen a court engages in ex post facto analysis, which is concerned solely with whether a statute assigns more disadvantageous criminal or penal consequences to an act than did the law in place when the act occurred, it is irrelevant whether the statutory change touches any vested rights.
Weaver, 450 U.S. at 29 n. 13, 101 S.Ct. at 965 n. 13. Our review of the United States Supreme Court’s definitions of ex post facto laws in Calder v. Bull and in Weaver v. Graham convinces us that before a statute of limitations for a particular criminal offense runs the Idaho legislature does have the power to extend the limitations period without violating art. 1, § 16 of the Idaho Constitution or the United States Constitution. In this case, the 1985 amendment extending the statute of limitations to five years became effective before the old three year statute of limitations period had expired. There is therefore no constitutional reason why the new five year statute of limitations could not be applied to crimes committed in 1983.
. The first version of what is now I.C. § 73-101 can be found in the General Laws of the Territory of Idaho, compiled in 1881. Initially, the provision applied only to the Code of Civil Procedure. See C.C.P. 1881, § 2. However, beginning with the 1887 Revised Statutes of the Idaho Territory the provision applied to all of the Codes. See R.S. § 3 (1887). The 1887 Codes included § 7501, which stated that "[a]n indictment for any other felony than murder must be found within three years after its commission.” R.S. § 7501 (1887). Section 7501 is the predecessor of I.C. § 19-402, the statute of limitations at issue.
. Art. 1, § 8 provides: "No person shall be held to answer for any felony or criminal offense of any grade, unless on presentment or indictment of a grand jury or on information of the public prosecutor, after a commitment by a magistrate____”