County Criminal Court: CRIMINAL LAW --- Statute of Limitations --- Trial court’s finding that §775.15 allowed only a five-year absolute limitation to begin prosecution was error. State should be allowed to show process executed without unreasonable delay. Order granting defendant’s motion to dismiss reversed. State v. Jones, No. CRC 06-76 APANO, (Fla. 6th Cir.App.Ct. March 7, 2008).

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

STATE OF FLORIDA

 

            Appellant,

 

v.                                                                                                                                          Appeal No. CRC 06-76 APANO

                                                                       UCN522006AP000076XXXXCR

JOEL L. JONES

 

            Appellee.

_____________________________/

 

 

Opinion filed __________________.

 

Appeal from a decision of the

Pinellas County Court

County Judge John Carassas

 

Carolyne Moomaw, Esquire

Assistant State Attorney

 

Kimberly Nolen Hopkins, Esquire

Attorney for appellee

 

ORDER AND OPINION

 

            THIS MATTER is before the Court on the State’s appeal from an order entered by the Pinellas County Court granting the defendant’s motion to dismiss. After reviewing the briefs and record, this Court reverses the trial court’s decision because it incorrectly found that the State only had a maximum of five years to bring the charges.

            The defendant in this case, Joel Jones, allegedly wrote some bad checks in mid-1999. The State filed informations on those charges in late 1999 and early 2000. These informations were not, however, executed until 2006.

 

TRIAL COURT’S FINDING OF FIVE-YEAR ABSOLUTE LIMITATION WAS ERROR

 

            Jones filed a motion to dismiss, arguing that the statute of limitations had expired. The trial court agreed, finding that the applicable statute of limitations, §775.15, Fla. Stat. (1999),[1] permitted the State a maximum of five years to begin prosecution. In reaching this decision, the trial court reasoned that the statute of limitations on a first degree misdemeanor was two years, and the language of subsection (6) of §775.15 (“The period of limitation does not run during any time when the defendant is continuously absent from the state … . This provision shall not extend the period of limitation otherwise applicable by more than three years … .”) only allows a maximum extension of the limitation period of three years if the defendant is absent from the state. This was error.

            In State v. Picklesimer, 606 So.2d 473 (Fla. 4th DCA 1992), the court found that service of the arrest warrant nine years after it was issued was not barred by the statute of limitations. It interpreted a version of the statute of limitations similar to that in the case at bar, and found that applying the three-year extension period found in subsection (6) to the provision relating to the execution of process in subsection (5) was mixing apples and oranges. The court noted that subsection (5) permits the State to relate back the date of service to the date the information is filed so long as the delay in executing process in not unreasonable. It found that the language in subsection (6) was not an absolute limitation upon prosecution after a specific period of time. Subsections (5) and (6) are independent. Id. at 475.

            Similarly, in State v. McCubbins, 817 So.2d 966 (Fla. 2d DCA 2002), the court noted the wording in subsection (6) that the statue of limitations does not run if the defendant is continuously absent from the State of Florida (“but in no case shall this provision extend the period of limitation otherwise applicable for more than three years”). The court, however, ruled that the subsection does not put an absolute limitation of prosecution. The court went on to note: “[i]f the State presents evidence that its delay in executing the capias was reasonable, prosecution may continue.” Id. at 967.

            In addition, the court in State v. Perez, 952 So.2d 611 (Fla. 2d DCA 2007) found prosecution was timely commenced because the information was filed less than two years from the date of the offense. The court noted that the defendant was not arrested until over five years after the information was filed, but found it was timely because the defendant was out of state and in jail in New Jersey during the time in question. The court quoted §775.15(6) (identical in pertinent part to the statute at issue here): “This provision shall not extend the period of limitations otherwise applicable by more than three years.” But the court then emphasized by placing in bold the rest of the sentence: “but shall not be construed to limit the prosecution of a defendant who has been timely charged by indictment or information or other charging document and who has not been arrested due to his or her absence from this state or has not been extradited for prosecution from another state.” The court held the limitation period was tolled for the entire seven years the defendant was incarcerated in New Jersey.

            Based upon the previous cases, the trial court’s ruling was in error. There is no absolute bar on prosecution, as long as the State fulfils its obligation to serve the defendant with process without unreasonable delay.

 

STATE SHOULD BE ALLOWED TO SHOW PROCESS EXECUTED WITHOUT UNREASONABLE DELAY

 

 

            §775.15(5)(b), Fla. Stat. (1999) provides that prosecution commences when an information is filed, “provided … process issued … is executed without unreasonable delay …  . The failure to execute process on or extradite a defendant in another state who has been charged by information … with a crime in this state shall not constitute unreasonable delay.” Under this statute, prosecution is commenced even if a defendant has not been served with process before the expiration of the statute of limitations as long as the information has been filed and process executed without unreasonable delay. And the last part of the statute provides that delay caused by a defendant’s incarceration in another state is not unreasonable.        

            To meet its obligation to show that it acted without unreasonable delay, the State attempted to use evidence purporting to show that the defendant was incarcerated in South Carolina for the time in question. Although the State asked the trial court to take judicial notice of the South Carolina evidence, the trial judge failed to rule on it. The trial court apparently believed it unnecessary to consider this because of its previous ruling finding the absolute five-year limitation on the State’s prosecution. This implicit rejection of the State’s request thwarted the State in its attempts to demonstrate that it acted without unreasonable delay. The State should be given an opportunity to meet its burden.

            IT IS THEREFORE ORDERED that the order granting the defendant’s motion to dismiss is reversed, and this case is remanded to the trial court with instructions for it to hold a hearing to determine if the State served process on the defendant without unreasonable delay. The State must be able to present evidence showing the delay was not unreasonable because of the defendant’s incarceration in South Carolina during the applicable time in question.

            DONE AND ORDERED in Clearwater, Pinellas County, Florida this _____ day of March, 2008.

 

                                                                                    ________________________

                                                                                    Judge Michael A. Andrews

                                                                                    Circuit Court Judge

 

 

 

                                                                                    ________________________

                                                                                    Judge Raymond O. Gross                                                                                                       Circuit Court Judge

 

 

 

 

                                                                                    _________________________

                                                                                    Judge R. Timothy Peters

                                                                                    Circuit Court Judge

 

cc:        Office of the State Attorney

 

            Kimberly Nolen Hopkins, Esquire

 

            Honorable John Carassas



[1] The 1999 version of the statute of limitations applies because the version in effect at the time of the alleged crime applies. See Cunnell v. State, 920 So.2d 810.