County Criminal Court:  APPELLATE PROCEDURE – Preservation of Error – motion for rehearing – argument raised in motion for rehearing is sufficient to preserve issue for appeal – Reversed and remanded for full hearing.  State v. Mendoza, No. 02-11945 (Fla. 6th Cir. App. Ct. April 28, 2003).

 

County Criminal Court:  CRIMINAL PROCEDURE – Dismissal – issuance of traffic citation sufficient to commence prosecution – Reversed and remanded for full hearing.  State v. Mendoza, No. 02-11945 (Fla. 6th Cir. App. Ct. April 28, 2003).

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA
IN AND FOR PINELLAS COUNTY

APPELLATE DIVISION

 

STATE OF FLORIDA,

                        Appellant,

 

vs.                                                                               APPEAL NO:  CRC02-11945CFANO

 

TOMAS MENDOZA,

                        Appellee.

                                                                      /

 

Opinion filed April _____, 2003.

 

Appeal from a decision of the

County Court for Pinellas County;

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 Mendoza’s motion to dismiss based on the statute of limitations.  The trial court’s order dismissed all four of the cases that Mendoza had pending before the lower court.  In particular, Mendoza faced charges of driving under the influence, careless driving, and driving without a valid license, all of which were initiated by traffic citations issued January 27, 1997.  He also faced a charge of obstructing and opposing an officer, which was charged by information filed March 19, 1997. 

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 (Fla. 4th DCA 2001) (“we cannot consider this issue on appeal since it was not argued below or raised via a motion for rehearing.”); Ritchie v. State, 720 So. 2d 261 (Fla. 1st DCA 1998).  That said, the record on appeal is scant.  No argument on the motion was offered by either the State or defense counsel.

  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 (Fla. 2d DCA 2001).  This is a burden that the State should not take lightly.  In addition, we note that the issuance of a traffic citation is sufficient to commence prosecution for purposes of the statute of limitations.  Deel v. State, 750 So. 2d 112 (Fla. 5th DCA 2000); Ivory v. State, 588 So. 2d 1007 (Fla. 5th DCA 1991). 

The order of the county court granting Mendoza’s motion to dismiss in CTC97-09216MMANO, CTC97-00113100XANC, CTC97-271771SANC, and CTC97-271772SANC is hereby vacated.  On remand, the lower court shall conduct a hearing on the motion to dismiss in accordance with this order.

DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this _______ day of April, 2003.

 

____________________________________

                                                                                    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).