People v. Butler

COLORADO COURT OF APPEALS 2017COA117

Court of Appeals No. 15CA0449
Mesa County District Court No. 07CR851
Honorable Valerie J. Robison, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Christopher Edward Butler,

Defendant-Appellant.

ORDER AFFIRMED

Division II
Opinion by JUDGE DAILEY
Fox and Plank*, JJ., concur

Announced September 7, 2017

Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Andrew C. Heher, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1 In 2007, defendant Christopher Edward Butler was charged

with and convicted of multiple criminal counts based on allegations

that he had sexually assaulted a child, L.W., between January 1992

and May 1995. He asserted that, inasmuch as the charges were

brought more than twelve years later, they were barred by the

applicable ten-year statute of limitations.

¶2 Butler had, however, been serving a Colorado sentence out-of-

state from 1999 until 2006, and, by statute, Colorado’s limitations

period was tolled, for up to five years, while a person was “absent

from the state of Colorado.”

¶3 The issue presented in this case is whether a defendant is

“absent” from the state for statute of limitations purposes when he

or she has been transferred by the Colorado Department of

Corrections (DOC) to an out-of-state facility to serve out the

remainder of a Colorado sentence. Because we conclude that the

person is absent from the state under those circumstances, we

affirm the postconviction court’s denial of Butler’s Crim. P. 35(c)

motion to vacate his convictions and sentences.

1
 I. Background

¶4 In 1995, Butler was convicted in Colorado and sentenced to

fourteen years imprisonment for sexually assaulting a child. In

1999, the DOC placed Butler in a Minnesota prison pursuant to an

agreement with Minnesota prison authorities. Butler served the

remainder of his Colorado sentence in Minnesota and was

discharged in 2006. A month after his release, he attempted to

contact L.W., prompting L.W. to report the abuse he had allegedly

suffered as a child to the police. As a result of L.W.’s report, Butler

was charged and prosecuted in the present case.

¶5 At the time of the alleged crimes, Colorado’s statute of

limitations provided a straightforward ten-year limitations period for

prosecuting the crimes with which Butler was charged. § 18-3-

411(2), C.R.S. 1995. In 2002, the General Assembly amended the

applicable limitations period by extending it to ten years after a

victim reaches the age of eighteen. Ch. 288, sec. 2, § 18-3-

411(2)(b), 2002 Colo. Sess. Laws 1128.

¶6 Before his trial, Butler moved for dismissal on the ground that

his prosecution was barred by the straightforward ten-year

limitations period in effect at the time of the alleged offenses. The

2
 prosecution responded that (1) the limitations period was no longer

simply ten years, but, pursuant to the 2002 amendment, it was ten

years after the victim reached the age of eighteen;1 or (2) in the

alternative, the limitations period had been tolled while Butler was

incarcerated in Minnesota.2 Without being more specific, the trial

court denied Butler’s motion to dismiss with a handwritten notation

“for the reasons cited by the prosecution.”

¶7 After a jury convicted Butler, the court sentenced him to

lengthy, consecutive terms of imprisonment in the custody of the

DOC. On direct appeal, Butler did not argue the statute of

limitations issue, and a division of this court affirmed his

1 As applied to this case, the period prescribed in the 2002 statute
would not have expired until 2008. Because the 2002 amendment
was enacted before the previous straightforward ten-year limitations
period would have expired in this case, the 2002 amendment could
have been applied here without violating ex post facto principles.
People v. Hicks, 262 P.3d 916, 919-20 (Colo. App. 2011) (“[T]here is
no ex post facto violation where the legislature extends the
limitations period for prosecutions not yet time-barred as of the
date of the extension.”).

2 In its response, the prosecution noted that Butler had “requested
that he be transferred to a facility outside the state of Colorado to
serve his sentence near his family.” The trial court never
determined whether Butler “requested” or otherwise “agreed to” the
transfer.

3
 convictions and sentences. See People v. Butler, (Colo. App. No.

08CA2442, Apr. 5, 2012) (not published pursuant to C.A.R. 35(f)).

¶8 In 2014, Butler filed a Crim. P. 35(c) motion to vacate his

convictions and sentences. Relying on People v. Summers, 208 P.3d

251 (Colo. 2009), he asserted that the underlying charges were

barred by the application of the straightforward ten-year limitations

period in effect when the crimes were committed. (Despite some

language in the 2002 amendment stating otherwise, the supreme

court in Summers interpreted the 2002 amendment as not applying

to persons who, like Butler, committed their crimes before it was

enacted. Id. at 259.)3

¶9 The People responded that (1) Butler’s postconviction claim

was barred by his failure to previously raise it when he had the

opportunity to do so on direct appeal; and (2) in any event, even the

straightforward ten-year limitations period had been tolled while he

was incarcerated in Minnesota. Agreeing with the second of these

3The basis of its decision was that the 2002 amendment was
ambiguous and, based on the rule of lenity, applied only to crimes
committed on or after the statute’s effective date. People v.
Summers, 208 P.3d 251, 259 (Colo. 2009).

4
 arguments, the postconviction court denied Butler’s motion for

relief.

II. Butler’s Claim Was Not Barred By the Abuse of Process Rule

¶ 10 As an initial matter, the People contend that Butler was barred

from pursuing his statute of limitations claim in a postconviction

proceeding under the abuse of process rule. We disagree.

¶ 11 Under one part of the abuse of process rule, a court is

generally required to “deny any claim that could have been

presented in an appeal previously brought[.]” Crim. P. 35(c)(3)(VII).4

Because Butler’s statute of limitations claim could have been — but

was not — brought on direct appeal, this part of the abuse of

process rule would appear to apply.

¶ 12 However, there are several exceptions to the abuse of process

rule, see Crim. P. 35(c)(3)(VII)(a)-(e), one of which is of particular

import here: “[A]ny claim that the sentencing court lacked subject

matter jurisdiction” may be pursued in a postconviction proceeding,

4 Abuse of process is a doctrine separate and apart from that of
successive petitions. See People v. Rodriguez, 914 P.2d 230, 253
(Colo. 1996). In 2004, the abuse of process doctrine was codified,
in an adapted form, in Crim. P. 35(c)(3)(VII).

5
 notwithstanding the fact that it could have been previously brought

in a direct appeal, Crim. P. 35(c)(3)(VII)(d).

¶ 13 “[D]espite their deep roots and pervasive nature, criminal

statutes of limitations are not constitutionally mandated; rather,

they are subject to legislative choice and can be amended or even

repealed altogether.” Frank B. Ulmer, Note, Using DNA Profiles to

Obtain “John Doe” Arrest Warrants and Indictments, 58 Wash. & Lee

L. Rev. 1585, 1612 (2001) (footnote omitted); see also 1 Charles E.

Torcia, Wharton’s Criminal Law § 92 (15th ed. 1993) (“At common

law, there was no limitation of time within which a criminal

prosecution had to be commenced; a time limitation is therefore a

creature only of statute.”).

¶ 14 That said, our case law is clear: a claimed statute of

limitations violation in a criminal case implicates the court’s subject

matter jurisdiction. See People v. Cito, 2012 COA 221, ¶ 32; People

v. Wilson, 251 P.3d 507, 509 (Colo. App. 2010) (citing People v.

Verbrugge, 998 P.2d 43, 44 (Colo. App. 1999)). Consequently,

Butler’s claim is not barred by the abuse of process rule.

¶ 15 We reject, as unpersuasive, the People’s argument that

Butler’s statute of limitations claim does not present an issue of

6
 subject matter jurisdiction. If we were writing on a clean slate, we

might well be receptive to their argument.5 But we are not writing

on a clean slate.

¶ 16 Nearly sixty years ago, the supreme court held that a statute

of limitations challenge is jurisdictional in nature. See Bustamante

v. Dist. Court, 138 Colo. 97, 107, 329 P.2d 1013, 1018 (1958) (“[T]he

statute of limitations in a criminal case is not merely a defense that

may be asserted at the trial as in civil matters, but denies

jurisdiction to prosecute an offense not committed within the period

limited.”), overruled in part on other grounds by Cty. Court v. Ruth,

194 Colo. 352, 575 P.2d 1 (1977). Since that time, divisions of our

court have characterized the “jurisdictional” nature of the issue in

Bustamante as one involving “subject matter” jurisdiction. See,

e.g., Wilson, 251 P.3d at 509; Verbrugge, 998 P.2d at 44-46,

superseded by § 16-5-401(12) as stated in People v. Lowry, 160 P.3d

396, 397 (Colo. App. 2007); see also People v. Ware, 39 P.3d 1277,

5 Indeed, courts in other states have found such arguments
persuasive. See State v. Peltier, 332 P.3d 457, 460 (Wash. 2014);
see also State v. Bowers, 709 A.2d 1255, 1264 n.7 (Md. 1998)
(“Although a few courts have held that the statute of limitations is
jurisdictional and cannot be waived, the vast majority of federal and
state courts have held that the statute of limitations is an
affirmative defense which can be waived.”).

7
 1279 (Colo. App. 2001) (“Under Colorado law, the statute of

limitations in criminal matters operates as a jurisdictional bar to

prosecution that cannot be waived.”).6

¶ 17 There is, of course, good reason for this. We cannot ignore the

supreme court’s characterization of a statute of limitations

challenge as one presenting a “jurisdictional” issue. People v.

Gladney, 250 P.3d 762, 768 n.3 (Colo. App. 2010) (the court of

appeals is bound to follow supreme court precedent); see People v.

Novotny, 2014 CO 18, ¶ 26 (The supreme court “alone can overrule

[its] prior precedents concerning matters of state law . . . .”). And

because there are but two types of “jurisdictional” issues, i.e.,

“personal” jurisdiction and “subject matter” jurisdiction, Circuit

Court v. Lee Newspapers, 332 P.3d 523, 533 (Wyo. 2014), and

Butler’s claim has nothing to do with “personal” jurisdiction, it

follows that the supreme court in Bustamante was addressing a

matter of “subject matter” jurisdiction.

6“In contrast to personal jurisdiction, subject matter jurisdiction
may not be waived and can be raised at any stage in the
proceedings.” In re Marriage of Pritchett, 80 P.3d 918, 921 (Colo.
App. 2003).

8
¶ 18 Finally, we reject the People’s assertion that the

nonjurisdictional nature of Butler’s claim is demonstrated by

section 16-5-401(12), C.R.S. 2016, which, the People say, allows a

defendant to “waive” a statute of limitations defense. Section 16-5-

401(12), however, says nothing about “waiver”; instead, it makes a

limitations period inapplicable in certain situations.7

¶ 19 In Wilson, a division of this court recognized that

[b]ecause subject matter jurisdiction is
established by the constitution and statutes,
the General Assembly can change the scope of
subject matter jurisdiction by amending
statutes. In enacting section 16-5-401(12), the
General Assembly modified the subject matter
jurisdiction of courts . . . .

251 P.3d at 509 (citation omitted).

¶ 20 We agree with the division in Wilson. Consequently, we

conclude that Butler was not barred by Crim. P. 35(c)(3)(VII) from

7 In pertinent part, section 16-5-401(12), C.R.S. 2016, provides as

follows:

The applicable period of limitations . . . shall
not apply to charges of offenses . . . brought to
facilitate the disposition of a case, or to lesser
included or non-included charges of offenses
or delinquent acts given to the court or a jury
at a trial on the merits, by the accused.

9
 pursuing a statute of limitations claim in this postconviction

proceeding.

III. The Trial Court Had Jurisdiction Over the Case Because Butler’s
Absence From the State Tolled the Limitations Period

¶ 21 Butler contends that the postconviction court erred in ruling

that the trial court had subject matter jurisdiction for purposes of

the statute of limitations’ tolling provision because he was “absent

from the state of Colorado” while he was incarcerated in Minnesota

for his prior Colorado convictions. We disagree.

¶ 22 In support of his contention, Butler makes two assertions: (1)

the trial court erroneously interpreted the tolling provision to

encompass periods when persons are serving Colorado sentences in

other states’ facilities; and, in any event, (2) the prosecution was

required to — but did not — plead and prove to a jury that he was

“absent from the state.” We address each in turn.

A. The Trial Court Properly Interpreted the Tolling Provision

¶ 23 Statutory interpretation presents a question of law which we

review de novo. People v. Johnson, 2015 CO 70, ¶ 9.

¶ 24 In interpreting a statute, our task is to ascertain and give

effect to the intent of the General Assembly. Dubois v. People, 211

10
 P.3d 41, 43 (Colo. 2009). To discern the legislative intent, we look

first to the language of the statute itself, Summers, 208 P.3d at

253-54, reading words and phrases in context and construing them

according to rules of grammar and common usage, People v. Diaz,

2015 CO 28, ¶ 12.

¶ 25 When the statutory language is clear and unambiguous, “we

apply the words as written without resort to other rules of statutory

interpretation.” People v. Shores, 2016 COA 129, ¶ 16 (citing People

v. Van De Weghe, 2012 COA 204, ¶ 8). But “[w]hen the language of

a statute is susceptible of more than one reasonable understanding

and is therefore considered ambiguous,” People v. Jones, 2015 CO

20, ¶ 10, “a court must look beyond the language [of the statute]

and consider other factors, such as the statute’s legislative history

and the objective sought to be achieved by the legislation,” People v.

Lovato, 2014 COA 113, ¶ 23.

¶ 26 In 1995, the pertinent statute of limitations tolling provision

stated that

[t]he time limitations imposed by this section
shall be tolled if the offender is absent from the
state of Colorado, and the duration of such
absence, not to exceed five years, shall be
excluded from the computation of the time

11
 within which any complaint, information, or
indictment must otherwise be filed or
returned.

§ 16-5-401(2), C.R.S. 1995.8

¶ 27 Butler argues that, because he was transferred to Minnesota

by the Colorado DOC, he was not “legally absent” from the state for

tolling purposes because (1) he did not travel out of state of his own

volition; (2) the Colorado DOC maintained “jurisdiction” over him

while he was incarcerated in Minnesota; and (3) a literal reading of

the word “absent” in the statute would lead to an illogical and

absurd result (i.e., that the DOC could circumvent statutes of

limitation at-will by transferring inmates out of state). We are not

persuaded.

¶ 28 We recognize that criminal statutes of limitations should

generally be construed liberally in favor of the defendant. People v.

Thoro Prods. Co., 70 P.3d 1188, 1196 (Colo. 2003). However, “the

principle of liberal construction . . . may not be invoked to alter the

plain meaning of a statute or to extend the application of its

provisions beyond the clear limits of their reach.” In re M.D.E.,

8 The current version of the statute of limitations contains a nearly
identical tolling provision. See § 16-5-401(2).

12
 2013 COA 13, ¶ 16; see also People v. Dinkel, 2013 COA 19, ¶ 19

(“[T]he rule of lenity . . . may be employed only to resolve an

unyielding statutory ambiguity . . . .”) (emphasis added).

¶ 29 In common and ordinary usage, the term “absent” is

understood to mean “not present or not attending” or “being

elsewhere.” Webster’s Third New International Dictionary 6 (2002);

see People v. Serra, 2015 COA 130, ¶ 52 (“Courts may refer to

dictionary definitions to determine the plain and ordinary meaning

of undefined statutory terms.”) (citing Webster’s Third New

International Dictionary to define a term). Being in another state,

such as Minnesota, qualifies, on its face, as being “not present” in,

or “elsewhere” than, Colorado, and thus “absent” from Colorado.

¶ 30 The General Assembly did not include in the tolling provision

language contemplating a defendant’s reason for being out of the

state, nor whether the defendant was out of state voluntarily. Had

it wanted the statute to encompass such circumstances, it could

easily have included them. See Turbyne v. People, 151 P.3d 563,

567 (Colo. 2007) (“We do not add words to the statute . . . .”); A.C. v.

People, 16 P.3d 240, 243 (Colo. 2001) (an appellate court will not

create an exception to a statute that its plain meaning does not

13
 suggest or demand); People v. Benavidez, 222 P.3d 391, 393-94

(Colo. App. 2009) (“[I]n interpreting a statute, we must accept the

General Assembly’s choice of language and not add or imply words

that simply are not there.”).

¶ 31 Other states with similar provisions have held that absence

from the state alone is sufficient to toll the limitations period,

regardless of whether it was voluntary or due to imprisonment in

another state, and regardless of the ease with which the state could

apprehend the defendant or return him from out of state. See State

v. Stillings, 778 P.2d 406, 408-10 (Mont. 1989) (rejecting

defendant’s argument that during his incarceration in another state

for a Montana conviction, he was “still under Montana jurisdiction”

and holding that “mere absence of the criminal defendant from the

state is sufficient to toll the statute of limitations”);9 see also State

v. Lee, 948 P.2d 641, 648 (Kan. 1997) (“[A]bsent from the state”

tolling provision unambiguously required only “that ‘the accused is

9 The Montana tolling statute provided, in pertinent part, that the
period of limitation does not run during “any period in which the
offender is not usually and publicly resident within this state.” See
State v. Stillings, 778 P.2d 406, 409 (Mont. 1989). The Stillings
court interpreted that to mean, as here, “absent” from the state.
See id.

14
 absent from the state’ in order to toll the statute of limitations,

regardless of whether the absence is voluntary or involuntary.”

(quoting State v. Hill, 64 P.2d 71, 73 (Kan. 1937))), disapproved of

on other grounds by State v. Gunby, 144 P.3d 647 (Kan. 2006); State

v. Canton, 308 P.3d 517, 519-24 (Utah 2013) (The phrase “out of

the state” in the tolling statute focuses on a person’s physical

presence within or without the state’s territorial boundaries, and

not on abstract constructs of “legal presence.”); State v. Newcomer,

737 P.2d 1285, 1290 (Wash. Ct. App. 1987) (rejecting the argument

that a statute of limitations should not have been tolled as a result

of the defendant’s incarceration in another state because he was

“available” to Washington authorities through the Interstate

Agreement on Detainers).10

¶ 32 That Butler was sent out of state by the DOC (i.e., not of his

own free will, nor to evade the law) and that the DOC maintained

10Butler points out factual distinctions between these cases and his
own — namely, that these cases (except for Stillings) involve
defendants serving out-of-state sentences for crimes committed in
that other state, as opposed to being transferred and serving a
sentence in one state for an offense committed in another. This
distinction, however, does not diminish the main conclusion that
the tolling provisions in each case concerned only the physical
location of a defendant when determining whether he was “absent,”
and not why or how such absence occurred.

15
 jurisdiction over him while he was in Minnesota (per contractual

agreements between state correctional facilities) do not change the

fact that he was actually “absent” from the state of Colorado.

¶ 33 Butler asserts that such a literal reading of the statute leads

to an absurd result, that is, DOC authorities could circumvent

statutes of limitations at-will by transferring defendants out of

state. Butler points out that this action would defeat the purpose of

statutes of limitation — to protect individuals from defending

themselves against stale charges. See Higgins v. People, 868 P.2d

371, 373 (Colo. 1994).

¶ 34 While it is true that “[a] statutory interpretation leading to an

illogical or absurd result will not be followed,” Frazier v. People, 90

P.3d 807, 811 (Colo. 2004), we do not perceive an absurd result

from our interpretation. There is — and, under the facts, can be —

no suggestion that the DOC transferred Butler to circumvent an

otherwise applicable limitations period. This follows because law

enforcement, much less the DOC, had no reason to suspect Butler

of the crimes charged here until after he had been released from

incarceration in Minnesota.

16
¶ 35 Further, as noted by the postconviction court, the provision

limiting the tolling “not to exceed five years” prevents the statute’s

purpose from being thwarted indefinitely. To the extent that

Butler’s policy arguments may highlight shortcomings in the

statute, that does not mean the result is absurd or illogical. “If a

statute gives rise to undesirable results, the legislature must

determine the remedy. Courts may not rewrite statutes to improve

them.” Dep’t of Transp. v. City of Idaho Springs, 192 P.3d 490, 494

(Colo. App. 2008) (citation omitted).

¶ 36 Finally, Butler argues that the trial court’s interpretation of

“absent” should be rejected because the result of such an

interpretation is unconstitutional. Butler did not, however, present

any of his constitutional arguments to either the trial court or the

postconviction court. Although we have the discretion to review

unpreserved challenges to a statute’s constitutionality, we do so

“only where doing so would clearly further judicial economy.”

People v. Houser, 2013 COA 11. Because Butler did not raise his

constitutional arguments until appeal of the postconviction ruling,

and because he “does not explain, nor do we discern, how our

addressing his . . . challenge could promote judicial economy,” we

17
 decline to address the merits of his argument. See People In

Interest of L.C., 2017 COA 82, ¶ 19.

¶ 37 Consequently, we, like the postconviction court, conclude that

the applicable ten-year limitations period was tolled while Butler

was in Minnesota.

B. Butler’s Prosecution Was Not Barred or Otherwise
Subject to Reversal Because of Pleading and Proof Requirements

¶ 38 Butler asserts that the People were nonetheless required to

plead and prove to a jury beyond a reasonable doubt the facts of the

tolling exception. We perceive no grounds for vacating his

convictions and sentences.

1. Pleading the Tolling Exception

¶ 39 In Bustamante, 138 Colo. at 103, 329 P.2d at 1016, the

supreme court said that

time is material and must be alleged in an
indictment or information when the crime
alleged to have been committed is one which
the statute of limitations bars from
prosecution after the period prescribed. When
the time so alleged shows on the face of the
charge that it is barred by the statute of
limitations, it is necessary that the indictment
or information expressly allege one or more of
the exceptions provided by the statute,
otherwise the application of the statute is
automatic.

18
 See also id. (quoting with approval People v. McGee, 36 P.2d 378,

379 (Cal. 1934), overruled on other grounds by Cowan v. Superior

Court, 926 P.2d 438, 441 (Cal. 1996), for the proposition that

“where the pleading of the state shows that the period of the statute

of limitations has run, and nothing is alleged to take the case out of

the statute, for example, that the defendant has been absent from

the state, the power to proceed in the case is gone”).

¶ 40 Butler argues that the prosecution’s failure to plead his

absence from the state in the information deprived the court of

jurisdiction to proceed. This follows, he says, because without such

an allegation, the information on its face described offenses

committed beyond the applicable ten-year limitation period. Under

the circumstances of this case, we must disagree.

¶ 41 At the time Butler was charged, the charges appeared timely

on their face. Per the 2002 amendment to the statute of limitations,

the limitations period was ten years after the victim reached age

eighteen, or, as applicable here, 2008. Inasmuch as Butler was

charged in 2007 — when the victim in this case was twenty-seven

(and thus, within ten years after reaching age eighteen) — the

19
 charges, on their face, appeared to fall squarely within the

limitations period. Only now, in hindsight (i.e., since Summers was

decided), is it apparent that the limitations period for Butler’s

charges was governed by the straightforward ten-year period

provided in the statute of limitations in effect from 1992 through

1995.

¶ 42 Moreover, the People argued as an alternative ground that the

case was, in any event, timely brought because whatever

limitations period applied was tolled while Butler was absent from

the state of Colorado. Because the court denied Butler’s motion “for

the reasons cited by the prosecution” (emphasis added), the court

implicitly adopted both of the People’s positions. The court’s

adoption of the People’s first position (i.e., the applicability of the

2002 amendment to the statute of limitations) made superfluous,

however, any apparent need to plead Butler’s absence from the

state as a ground for tolling the applicable limitations period.

¶ 43 Butler asserts that, regardless of what was apparent in 2007,

there can be no question now that the 2002 amendment to the

statute of limitations was inapplicable to his case and that the

information does not allege facts (i.e., his absence from the state)

20
 that would have brought his case within the applicable ten-year

statute of limitations. Consequently, he insists, the case must be

dismissed.

¶ 44 The supreme court has held that a trial court has jurisdiction

to consider — and grant — a Crim. P. 7(e) motion to amend an

information to bring the alleged offenses within the period

prescribed by the statute of limitations. People v. Bowen, 658 P.2d

269, 270 (Colo. 1983); see also Cervantes v. People, 715 P.2d 783,

786 (Colo. 1986) (“Crim. P. 7(e) is to be construed liberally to avoid

the dismissal of cases for technical irregularities in an information

that can be cured through amendment.”); People v. Metcalf, 926

P.2d 133, 139 (Colo. App. 1996) (recognizing that “[t]he Bowen

court held that a trial court may permit the amendment of an

information to allege that an offense occurred within the period of

limitations”).

¶ 45 Here, we perceive the substance of the second part of the

prosecution’s pretrial response to Butler’s motion to dismiss as the

functional equivalent of a request, if necessary, to amend the

information to cure the jurisdictional defect, as was the case in

Bowen, 658 P.2d at 270, by including an “exception,” i.e., Butler’s

21
 absence from the state. Because such an amendment would not

have charged a different offense or prejudiced Butler’s substantial

rights, it would have been permissible. See Metcalf, 926 P.2d at

139.

¶ 46 We acknowledge that the prosecution did not expressly make,

nor did the trial court expressly grant, a motion to amend the

information, but the court accepted the People’s tolling position and

undoubtedly would have done what was necessary to implement it

had the court realized that the People’s initial position was

erroneous. What would have been necessary, in that event, would

have been an amendment to the information.

¶ 47 In our view, the court’s ruling, slim as it was, was sufficient to

credit the tolling rationale as a basis for its jurisdiction, and the

court was not deprived of jurisdiction simply because it did not then

require that the information be amended accordingly. Because the

court’s ruling on the tolling ground could only be given effect, if

necessary, by approving an amendment to the information, we

construe the court’s action as having had that effect. See Grynberg

v. Karlin, 134 P.3d 563, 567 (Colo. App. 2006) (finding that a

district court, despite failing to expressly grant or deny defendant’s

22
 motion, implicitly denied the motion because it “considered and

discussed the motion during the hearing, and . . . denial of that

motion was an inevitable corollary of the court’s [other] ruling[s]”);

see also Zoline v. Telluride Lodge Ass’n, 732 P.2d 635, 638 (Colo.

1987) (discussing cases from other jurisdictions that have adopted

the same rule that “the determination of a motion need not always

be expressed but may be implied”) (citation omitted).

¶ 48 Thus, we conclude that, under the circumstances here, the

prosecution’s failure to plead Butler’s absence from the state did

not deprive the court of jurisdiction to proceed.

2. Proving the Tolling Exception

¶ 49 If a trial court’s jurisdiction depends on the resolution of

disputed facts, the issue should be submitted to the jury with an

appropriate instruction unless the “uncontested facts

overwhelmingly support jurisdiction.” People v. Cullen, 695 P.2d

750, 751 (Colo. App. 1984). Consistent with this rule, a trial court

can resolve a statute of limitations tolling issue prior to trial,

without submitting it to a jury, if it can be decided based on

undisputed facts. Cito, ¶¶ 29-32.

23
¶ 50 Here, Butler argues that the facts were disputed regarding

whether he was “absent” in fact and law from the state. The fact of

Butler’s incarceration in Minnesota was not disputed; only the legal

significance of this fact. Thus, the determination of whether this

constituted being “absent” under the statute was a legal

determination for the court to make based on undisputed facts.

¶ 51 To the extent that Butler argues a jury determination was

required under Apprendi v. New Jersey, 530 U.S. 466 (2000), we

disagree. The rationale in Apprendi applies to elements of a crime

or to sentencing factors which are the functional equivalent of

elements of a crime. See id. at 510. Butler cites no authority for

the proposition that a statute of limitations is either. And, indeed,

it appears it is not. See, e.g., People v. Linder, 42 Cal. Rptr. 3d 496,

502-03 (Cal. Ct. App. 2006) (the Apprendi line of cases does not

apply because a statute of limitations is not an element of an

underlying charge, and extending a limitations period does not

increase a defendant’s punishment).

IV. Conclusion

¶ 52 The order is affirmed.

JUDGE FOX and JUDGE PLANK concur.

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