So we are looking a theft $500-$1500 that occurred in 2003. But the dude has two prior thefts which makes the case a state jail felony for punishment purposes.

Which statute of limits controls...2 yrs because offense is technically a misdemeanor or 5 yrs because priors make offense a felony?

Do you think we can indict it or is it too late?

I would think that if the priors enhance the jurisdiction to District Court, you have more time (because you are charging a felony offense with elements of the felony being the priors), but that if it just enhances a punishment range, you don't (e.g., 2 priors enhancing jurisdiction on a DWI, but only one prior only enhances the punishment). I think if I'm right about that, then you are fine to file.

However, another issue is whether you can still prove your 2003 theft case (and why it took so long to file), and whether you think this guy is worth spending the resources to go after at this point. The defense will likely raise some issue about the length of time it took to file (and probably say something ballsy like "the only reason the State's charging the felony is because you're outside your statute of limitations on the misdemeanor, c'mon, judge, quash the indictment").

I think the priors are certainly jurisdictional. The statute reads with the same language as the DWI statute or the Evading with a motor vehicle with prior evading statute.

I don't think it's a leap to file.