County Criminal Court: Criminal Law – Statute of Limitations – State failed to re-establish a lost or destroyed pleading pursuant to Florida statute 71.011 and 71.031. Filing an entirely new pleading was not proper. Judgment and sentence reversed with instruction to enter dismissal of charges. Arline v. State, No. CRC 06-23 APANO (Fla. 6th Cir. App. Ct. October 1, 2007).NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL

CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

 

 

 

THOMAS ARLINE

 

            Appellant,

 

v.                                                                                                                                           Appeal No. CRC 06-23 APANO

                                                                        UCN522006AP000023XXXXCR

STATE OF FLORIDA

 

            Appellee.

_________________________________/

 

 

Opinion filed _____________________.

 

Appeal from a judgment entered

by the Pinellas County Court

County Court Judge Paul A. Levine

 

Richard W. Blyler, Esquire

Assistant Public Defender

 

Della M. Connelly, Esquire

Assistant State Attorney

 

 

ORDER AND OPINION

 

 

            THIS MATTER is before the Court on Thomas Arline’s appeal from a judgment entered by the Pinellas County Court. The defendant pleaded no contest to Fleeing and Eluding charges, but reserved his right to appeal the denial of his motion to dismiss. After reviewing the briefs and record, this Court reverses the judgment.

            Defendant argues that the trial court erred in denying his motion to dismiss because prosecution is barred by the statute of limitations.

            On February 28, 2000, the defendant is alleged to have committed the crime of Fleeing and Eluding. The defendant failed to appear at a hearing on April 11, 2000 and a capias was issued for his arrest. On September 27, 2005 the defendant was apprehended and the capias was served. Prior to trial it was discovered that no uniform traffic citation was in the court file. The State contended that the original had been lost at some point during the over five years that the defendant had delayed the proceedings. Moreover, several State agencies had purged their records during this time, and no copies of the citation were available. The State filed a new Information on January 24, 2006 charging the defendant with the 2000 Fleeing and Eluding offense. The defendant challenged that new information as being filed well past the expiration of the statute of limitations. At that point the trial court asked the parties for assistance on how to proceed. The record does not establish that either party filed anything in response to this request and the trial court subsequently entered its order denying the motion without explanation.

            In State v. Hellmond, 683 So.2d 524 (Fla. 3d DCA 1996), the court addressed the procedure to be followed to reestablish lost or destroyed records or pleadings. While it is understandable that the Assistant State Attorney was not aware of this rather obscure case authority at the time of the hearing in this matter, the State should either have proceeded on a substituted copy or proceeded under Florida Statutes §§’s 71.011 and 71.031 to re-establish the lost pleading or process. In the present case the State did not introduce any copy of the original pleading. The State chose to file an entirely new document. This was not the proper procedure.

            It does appear, however, that during the hearing on the Defendant’s motion to dismiss, the State attempted to establish that a uniform traffic citation had actually been filed, but was subsequently lost. During the hearing on Defendant’s motion to dismiss the State elicited testimony from an employee of the Clerk of Court, but that testimony was not sufficient to establish the lost citation. The testimony did not address what was actually contained in the alleged pleading. There was no other testimony and no copy of the original citation was admitted into evidence.

            Once a defendant raises the statute of limitations as a defense, the burden then shifts to the State to prove that the offense is not barred by the statute. See Netherly v. State, 804 So.2d 433 (Fla. 2d DCA 2001). In the case at bar, the State failed to meet its burden. The new information was untimely, and the lost pleading was not reestablished. The statute of limitations issue was not waived.  The Defendant’s motion to dismiss was heard before the trial court.  In any event, Statute of limitations is a jurisdictional issue and an appellate court is not foreclosed from considering it notwithstanding a failure to raise the issue at trial or appellate level.  Bridenthal v. State, 453 So2d 437 (Fla. 2nd DCA 1984).  Further there is no testimony or evidence in the record that establishes that Defendant received a copy of the uniform traffic citation. Therefore, the defendant’s motion to dismiss should have been granted.

            IT IS THEREFORE ORDERED that the judgment is reversed, and this matter is


remanded to the trial court with instructions to grant the defendant’s motion to dismiss.

            ORDERED at Clearwater, Florida this _____ day of September, 2007.

 

 

 

                                                                        _______________________

                                                                                    Linda R. Allan

                                                                                 Circuit Court Judge

 

 

 

 

                                                                        _______________________

                                                                                    R. Timothy Peters                                

                                                                                   Circuit Court Judge

 

 

 

                                                                        ________________________

                                                                                    John A. Schaefer

                                                                                  Circuit Court Judge

 

 

 

 

cc:        Honorable Paul A. Levine

            Office of the State Attorney

            Office of the Public Defender