(dissenting)—I dissent. In my view State v. Sass, 94 Wn.2d 721, 670 P.2d 79 (1980) was wrongly decided and, in any event, has been given an inappropriately expansive reading by the majority.
RCW 74.08.331 defines the crime of welfare fraud and provides that one violating its provisions "shall be guilty of grand larceny and upon conviction thereof shall be punished by imprisonment in the state penitentiary for not more than fifteen years." In Sass, after carefully stating at page 722 that "[t]he sole question is what is the appropriate penalty," the court held that the Washington Criminal Code of 1976 (RCW Title 9A) repealed "by implication the portion of [RCW 74.08.331] establishing the welfare fraud penalty" and substituted in its stead the penalties of first, second or third degree theft, depending on the monetary amount involved. State v. Sass, 94 Wn.2d at 726.
Welfare fraud was deemed in Sass to be a particular degree of theft because (1) the criminal code applies to offenses "defined in this title or the general statutes, unless otherwise expressly provided ..." RCW 9A.04.010(2), (2) the code requires that "larcenies outside of this title ... be treated as thefts as provided in this title", RCW 9A.56.100, and (3) the "rule of lenity" prevents an increase in a penalty absent clear evidence such was intended by the Legislature. I submit this rationale is incorrect.
The criminal code expressly does not apply to crimes defined outside its provisions, if "the context otherwise requires". RCW 9A.04.010(2). Because the "context" of the welfare fraud statute requires otherwise, one does not even reach the code's later direction (RCW 9A.56.100) that lar-*809ceníes be "treated as thefts". In my view, the Supreme Court completely ignored this prefatory proviso that limited the operation of the act so as to clearly exclude welfare fraud.
To begin with, welfare fraud is not a "particular degree of theft," (majority opinion, at 806) because the two crimes are committed in different ways—the elements are not the same, see State v. Holmes, 98 Wn.2d 590, 597, 657 P.2d 770 (1983), and evidence that could sustain one charge would not necessarily suffice for the other. See State v. Olds, 39 Wn.2d 258, 260, 235 P.2d 165 (1951).
Further, in RCW 74.08.331, the Legislature specifically provided that "attempts" at welfare fraud carry the same penalty as completed frauds. Strict application of Sass, however, would preclude the imposition of a penalty for an attempt because the particular amount involved cannot be determined until the Department of Social and Health Services actually awards the assistance. Cf. State v. Holmes, 98 Wn.2d at 599-600. RCW 9A.28.020(3). It should be noted that "public assistance" may take the form of "medical care, surplus commodities and food stamps," items which hardly lend themselves to being valued in terms of dollars, if Sass in fact requires such specificity.
Even if the criminal code (RCW Title 9A) applies to welfare fraud, as held in Sass, the fact that all larcenies outside the criminal code must be "treated as thefts as provided" within the code does not mean that all larcenies would be punishable according to the monetary amount involved. See RCW 9A.56.100. Such a syllogism might be persuasive if all "thefts as provided in this title" were punishable under such a classification system. They are not, however. For instance, theft of livestock is a type of theft "provided in this title" that is punishable as a class B felony regardless of the amounts involved. RCW 9A.56.080. Cf. State v. Washing, 36 Wash. 485, 491, 78 P. 1019 (1904) (prosecution for felony theft of livestock under former Ball. Code § 7113). Rather, because welfare fraud was intended *810to be a felony equivalent to the highest degree of larceny,5 see former RCW 9.01.020, it properly would be "treated" as a theft by imposing the felony punishment equivalent to the highest degree of theft.6 State v. Sass, 24 Wn. App. 289, 291-92, 600 P.2d 688 (1979).
In any event, although the doctrine of stare decisis may require us to follow Sass, we need not, as the majority has done, extend that precedent. Sass did not hold that the amount of assistance involved was an element of welfare fraud, but only that the criminal code had repealed "by implication the portion of [RCW 74.08.331] establishing the welfare fraud penalty ..." State v. Sass, 94 Wn.2d at 726. (Italics mine.) If, as the majority here states, the elements of other theft crimes were "incorporated" into RCW 74.08.331, the Supreme Court would not have held in a case after Sass that "the welfare fraud statute does not include the intent to deprive element present in RCW 9A.56 thefts." State v. Holmes, 98 Wn.2d at 597. Indeed, unlike theft in the first, second and third degrees, welfare fraud does not include a designated amount as an integral part of its definition of the crime. Compare RCW 74.08.331 with RCW 9A.56.030-.050. Like the presumptive sentencing act, Sass simply states that a particular factor determines the punishment to be imposed. In neither case does it follow that such a factor becomes ipso facto an element of the underlying crime. Hence, the information against the *811Bryces includes all the elements necessary to charge the felony crime of welfare fraud and should not have been dismissed on that ground.
Nor do I agree that the original information was filed in violation of the statute of limitations for misdemeanors, thus depriving the court of jurisdiction. Welfare fraud is a felony regardless of the amount involved. A statute is not taken out of the felony classification simply because it countenances a misdemeanor punishment,7 State v. Harvey, 57 Wn.2d 295, 301, 356 P.2d 726 (1960); Olsen v. Delmore, 48 Wn.2d 545, 547-48, 295 P.2d 324 (1956). As I have demonstrated, it is clear that welfare fraud was intended to be a felony. Accordingly, the statute of limitations for misdemeanors is inapplicable and the information was timely filed to charge a felony.
Finally, I must dissent on an additional ground. Assuming arguendo that welfare fraud is not always a felony, and that the amount involved is an element that must be pleaded, the State should have been allowed to amend its information to set forth the amount and clarify the charge, absent some showing that the defendant's substantial rights would have been prejudiced. CrR 2.1(d); State v. Fischer, 40 Wn. App. 506, 699 P.2d 249 (1985); State v. Koch, 38 Wn. App. 457, 685 P.2d 656 (1984).
In State v. Glover, 25 Wn. App. 58, 604 P.2d 1015 (1979), we held that an information clearly intending to charge what could be only a misdemeanor (former RCW 9.79-.080(1)) could not be amended to charge a felony (former RCW 9.79.080(2)) where the misdemeanor statute of limitations had run before the initial charge was filed. The original Bryce information did not clearly charge what can be only a misdemeanor; accordingly the State's attempt to amend was not an attempt to broaden impermissibly the *812original charge.8
Rather, assuming the information lacked an essential element (amount) of "theft by welfare fraud," and was therefore defective, i.e., if unamended would not have supported a felony conviction had one been obtained, see Mooney v. Cranor, 38 Wn.2d 881, 233 P.2d 850 (1951), the State's request to amend should have been granted. Bryces could not have been misled as to how they had violated the law, i.e., improperly obtained or attempted to obtain, by one of the several means charged in the original information, welfare benefits to which they were not entitled. They can demonstrate absolutely no prejudice. See State v. Gosser, 33 Wn. App. 428, 656 P.2d 514 (1982). Accordingly, the Bryce information was timely filed. Unlike Glover, the court obtained jurisdiction of the subject matter and parties. The corrective amendment should have been allowed, and then would have "related back" to the initial filing. CR 15(c); State v. Fischer, supra.
To avoid an unreasonable extension of Sass and Glover I would reverse and permit an amendment of the information.
Because the predecessor to RCW 74.08.331 "failed to specify the type of larceny involved" and "[s]ome prosecutors were reluctant to charge recipients when the conviction could only result in a gross misdemeanor," the Legislature intended to "leave no doubt that [the new welfare fraud statute] changes the crime to grand larceny. ..." Letter to Governor Daniel Evans from Walt Howe (Mar. 30, 1965) (regarding H.B. 264) Wash. State Archives.
That this was and apparently continues to be the legislative intent is obvious from its passage of the Sentencing Reform Act of 1981, wherein it provided that "welfare fraud" would be punished at the same seriousness level (II) as "theft in the first degree" and "theft of livestock." See RCW 9.94A.320. If Sass is correct in holding that the Legislature repealed the penalty portion of the welfare fraud statute, it is now evident that the Legislature's passage of the sentencing act repealed those changes found by Sass.
Indeed, even the felonies of "theft in the first degree" and "theft of livestock" may be punished with misdemeanor sentences (county jail time) under the presumptive sentencing act. See RCW 9.94A.310; RCW 9.94A.320.
As noted in State v. Fischer, 40 Wn. App. 506, 699 P.2d 249 (1985), our opinion in Glover was not intended to preclude an amendment of an information (e.g. change of date) to bring it within the applicable statute of limitations for the crime originally intended to be charged.