Thus, the trial judge did not err in permitting the State to amend its indictment[.]"); accord Shockley v. State, 854 A.2d 1159, 2004 WL 1790198, at *2 (Del. Aug. 2, 2004) (ORDER); Rogers v. State, 839 A.2d 666, 2003 WL 22957024, at *2 (Del. Dec. 12, 2003) (ORDER); State v. Hester, 2012 WL 5364690, at *4 (Del. Super. Oct. 9, 2012); State v. Grossberg, 1998 WL 278391, at *1 (Del. Super. Apr. 13, 1998). 11 Del. C. § 206(b) ("A defendant may be convicted of an offense included in an offense charged in the indictment[.]"); see also Ward v. State, 575 A.2d 1156, 1158 (Del. 1990) ("A defendant may be convicted of a crime for which he has not been indicted if all of the elements of the crime are included in the definition of the crime with which he has been charged.") (citing 11 Del. C. § 206(b); Mackie v. State, 384 A.2d 625, 627 (Del. 1978)); Cane v. State, 560 A.2d 1063, 1066 (Del. 1989) ("A lesser included offense is, by definition, an offense for which a defendant may be convicted under an original charge.") (citing Dutton v. State, 452 A.2d 127 (Del. 1982)).
Issues of subject matter jurisdiction of the trial court may be raised at any stage of the proceedings. Cane v. State, Del.Supr., 560 A.2d 1063 (1989); Scott v. State, Del.Supr., 117 A.2d 831, 835 (1955). See Government of the Canal Zone v. Burjan, 5th Cir., 596 F.2d 690, 693 (1979).
Thus, according to Slater, the Superior Court erred by denying his motion to dismiss, following the announcement of the jury's verdicts. In support of his argument, Slater relies upon this Court's decision in Cane v. State, Del.Supr., 560 A.2d 1063 (1989), and Section 922 of Title 10. In Cane, the issue presented was whether the defendant, who was charged with first degree murder, had been properly convicted of the lesser included offense of manslaughter, since the five year statute of limitations on manslaughter had expired.
We warn Shelley that if he continues to file appeals from repetitive claims, he will be enjoined from filing future appeals without leave of the Court. See, e.g., 11 Del. C. § 205(g), (h) (providing statute of limitations does not run during any time when a prosecution has been commenced by indictment and is pending); 11 Del. C. § 2542(a), (g) (providing prisoner requesting final disposition must be tried within 180 days after prosecuting officer and court receive notice of request, not within 180 days of prisoner's signature of request); Cane v. State, 560 A.2d 1063, 1066 (Del. 1989) (noting State's request for jury instruction on Manslaughter as lesser included offense of Murder in the Second Degree effectively commenced prosecution against defendant for Manslaughter that related back to date of the original indictment). Johnson v. State, 2013 WL 6044393, at *2 (Del. Nov. 13, 2013) (citing In re Barbee, 693 A.2d 317, 319 (Del. 1997)).
This rule reflects the majority rule among the states. See Cane v. State, 560 A.2d 1063, 1064 (Del.1989), fn. 3. An involuntary-manslaughter instruction would have misled the jury into believing that it could convict Adams of a time-barred offense.
The transcript of the guilty plea reflects that Huffman understood the relevant time period was January 1, 1993 to December 31, 1993.Cf. Cane v. State, 560 A.2d 1063, 1065–66 (Del.1989) (construing Section 205 “to be jurisdictional in nature” and to confer substantive rights that defendant cannot waive). Appendix to State's Answering Brief at B35.
Nor do we find that the remedy implemented by the Superior Court, which was fully consistent with well-settled Delaware law, violated any of Kirk's constitutional rights. The case of Cane v. State, 560 A.2d 1063, 1066 (Del. 1989), which is cited by Kirk, is distinguishable from this situation. There, an indictment for manslaughter five years after the crime was committed was invalid because it was outside the statute of limitations.
The only exception to this mutuality of right principle is when the State asks for a lesser-included instruction "if at the time the offense is presented to the court, its prosecution is time barred."Cane v. State, 560 A.2d 1063, 1066 (Del. 1989).Conclusion
See " Conviction of A Lesser Offense, Against Which Statute of Limitations Has Run, Where Statute Has Not Run Against Offense With Which Defendant is Charged," 47 A.L.R.2d 887.The following courts have held that a defendant cannot be convicted of a lesser offense upon prosecution for the greater crime which includes the lesser offense when the prosecution is commenced after the statute of limitations has run on the lesser offense: State v. N.S., 98 Wn. App. 910, 991 P.2d 133 (2000); Cane v. State, 560 A.2d 1063 (Del. 1989); State v. Stillwell, 418 A.2d 267, 175 N.J. Super. 244 (1980); Holloway v. State, 362 So.2d 333 (Fla.Ct.App. 1978); Padie v. State, 557 P.2d 1138 (Alaska 1976); Waters v. United States, 328 F.2d 739 (10th Cir. 1964); Chaifetz v. United States, 288 F.2d 133 (D.C. Cir. 1960), rev'd on other grounds, 366 U.S. 209, 81 S.Ct. 1051, 6 L.Ed.2d 233 (1961); Benes v. United States, 276 F.2d 99 (6th Cir. 1960); Drott v. People, 71 Colo. 383, 206 P. 797 (1922); People v. Burt, 16 N.W. 378 (Mich. 1883).
Statutes of limitations are regarded as implicating considerations of subject matter jurisdiction; they limit the power of the court to punish defendants for crimes committed beyond the limitations period. See, e.g., Grayer v. State, 234 Ark. 548, 353 S.W.2d 148 (1962); Cane v. State, 560 A.2d 1063 (Del. 1989); State v. Morris, 81 Idaho 267, 340 P.2d 447 (1959); State v. Stillwell, 175 N.J. Super. 244, 418 A.2d 267 (Ct.App. Div. 1980); State v. Thomas, 72 N.D. 537, 9 N.W.2d 442 (1943). Under the second approach, adopted by the majority, which I refer to as the "forfeiture" approach, defendants can automatically and unintentionally lose the statute of limitations defense by failing to raise it before or during trial, by requesting an included offense instruction, or upon a guilty plea.