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,
IN THE CIRCUIT COURT
OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA IN AND FOR
STATE OF FLORIDA
Appeal No. CRC 06-76 APANO
JOEL L. JONES
Opinion filed __________________.
Appeal from a decision of the
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),
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
(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
AND ORDERED in Clearwater, Pinellas County, Florida
this _____ day of March, 2008.
Michael A. Andrews
Raymond O. Gross Circuit Court Judge
R. Timothy Peters
cc: Office of
the State Attorney
Nolen Hopkins, Esquire