County Criminal Court: CRIMINAL LAW – Statute of Limitations – Statute of Limitations expired because State failed to demonstrate what steps it took to execute proper documents on defendant. Order dismissing charges affirmed. State v. Damato, No. CRC 05-84 APANO, (Fla. 6th Cir. App. Ct. March23, 2007).

 

 

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 05-84 APANO

       UCN522005AP00084XXXXCR

JOSEPH Z. DAMATO

 

            Appellee.

_____________________________/

 

 

Opinion filed __________________.

 

 

Appeal from a decision of the

Pinellas County Court

Honorable Shawn Crane

County Judge

 

Shpresa Idrizi, Esquire

Assistant State Attorney

 

J. Kevin Hayslett, Esquire

Attorney for appellee

 

 

ORDER AND OPINION

 

 

            THIS MATTER is before the Court on the State’s appeal from an order dismissing the charge against the defendant. After reviewing the briefs and record, this Court affirms the decision of the trial court.

            The defendant claimed the statute of limitations had expired on the charge arising out of an incident that occurred in 1994. This matter is governed by the law in effect at the time the alleged crime was committed. See Abdullah v. State, 883 So.2d 843 (Fla. 5th DCA 2004). Therefore, §775.15(5), Fla. Stat. (1994) is applicable.[1] That statute provides that: “a prosecution is commenced when either an indictment is filed, provided the capias, summons, or other process issued on such indictment is executed without unreasonable delay.”

The defendant testified that he was never served with any document initiating the prosecution. Whenever a defendant claims the statute of limitations has expired, the burden shifts to the State to demonstrate that it has not. See  State v. King, 282 So.2d 162 (Fla. 1973); Gray v. State, 803 So.2d 755 (Fla. 2d DCA 2001). A review of the transcript of the hearing on the motion to dismiss reveals that the State failed to meet its burden. No evidence, either by testimony or document, was presented by the State showing what was actually given or sent to the defendant; and the trial court was never asked to take judicial notice of anything. The defendant testified and was cross-examined, but the State’s case was nothing more than legal argument against the motion. That was insufficient. This Court supports the trial court’s ruling that the State failed to meet its burden in this case to demonstrate that the statute of limitations had not expired under the 1994 version of the applicable statute. Accordingly, the trial court’s granting of the defendant’s motion to dismiss is affirmed.   

           


IT IS THEREFORE ORDERED that the order dismissing the charge is affirmed.

 

            ORDERED in Clearwater this ____ day of March, 2007.

 

 

 

 

                                                                        ___________________________

                                                                                    Linda R. Allan

                                                                                    Circuit Court Judge

 

 

 

                                                                        ___________________________

                                                                                    R. Timothy Peters

                                                                                    Circuit Court Judge

 

                                   

 

                                                                        ____________________________

                                                                                    John A. Schaefer

                                                                                    Circuit Court Judge

 

 

cc:        Office of the State Attorney

 

            J. Kevin Hayslett, Esquire

 

            Honorable Shawn Crane

 


[1] This Court notes that under the current version of the statute the defendant would be unlikely to prevail.