IN
THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT OF THE STATE OF
IN AND
APPELLATE
DIVISION
STATE
OF
Appellant,
vs.
APPEAL
NO: CRC02-11945CFANO
TOMAS
Appellee.
/
Opinion filed April _____, 2003.
Appeal from a decision of the
County
Court for
Thomas B. Freeman, Judge.
Dwayne D. Perser, Esquire
Assistant State Attorney.
Roger D. Futerman, Esquire
Attorney for Appellee.
ORDER
AND OPINION
The State appeals from
the trial judge’s order granting
On appeal, the State
raises argument that was raised only in a motion for rehearing before the
lower court. Argument raised in a motion
for rehearing is sufficient to preserve an issue for appeal.
Hoffman v. Hoffman, 793 So. 2d 128 (
In light of the limited record before us, we find it appropriate to vacate the trial judge’s order granting the motion to dismiss and remand for a hearing, at which time the State can present the argument raised in its motion for rehearing and defense counsel can raise any other arguments he may choose to raise. We note that the State, in its motion for rehearing, conceded that the statute of limitations barred prosecution on the charge of obstructing and opposing an officer. [1]
For purposes of the
hearing on remand, we note the following. “Once the jurisdiction of the court is challenged,
the burden is on the State to establish that the offense is not barred by
the statute of limitations.” Sutton v. State, 784 So. 2d 1239, 1241
(
The
order of the county court granting
DONE
AND ORDERED in Chambers, at
____________________________________
JOHN A. SCHAEFER, Circuit Judge
____________________________________
W. DOUGLAS BAIRD, Circuit Judge
____________________________________
NANCY MOATE LEY, Circuit Judge
cc: State Attorney’s Office
Roger D. Futerman, Esquire
[1] As such, neither the State’s Notice of Appeal, nor its Initial Brief, references case number CTC97-09216MMANO (i.e., the obstructing and opposing an officer charge).