Written by attorney Anthony Biagio Rickman

Florida Statute of Limitations-Has time run out on your prosecutions

The State has the burden of proving that the prosecution of an offense is not time barred within the interpretation of the Statute of Limitations. Clements v. State, 979 So. 2d. 256 (Fla. 2nd DCA 2007). The interpretation of the Statute must be liberally construed in the favor of the defendant. State v. Perez, 72 So. 3d 306 (Fla 2nd DCA 2011). Florida Statute § 775.15 sets forth the time limitations in the prosecution of criminal cases. A prosecution for a Third Degree Felony and a Second Degree Felony must be commenced within three (3) years after the offense is committed. Fla. Stat. §775.15 (2)(b) (2002). The criminal prosecution of defendant not arrested or served with a summons or a capias commences when the information or indictment is filed, provided that the capias or summons is executed without unreasonable delay. Fla. Stat. 775.15 (5) (2002). When determining if the state created an “unreasonable delay" the Court shall consider if the state was able to locate the defendant after a diligent search as well as the defendants absence from the state. Id. If the defendant is continually absent from the State, the statute of limitations will be extended for three years, so long as the defendant was timely charged, but shall not....limit the prosecution of a timely charged defendant if that defendant was not arrested due to his/her absence from the State.. Fla. Stat. § 775.15 (6) (2002) [1].

Florida Courts have addressed what constituted both an "unreasonable delay" and a "diligent search" for purposes of the statute of limitations in accordance with 775.15 (5) (2002). Courts have barred the prosecution of a defendant where the State presented no evidence of the efforts made to conduct a diligent search for a defendant who had an active capias. see Soto v. State, 982 So. 2d 1290 (Fla. 4th DCA 2008). The prosecution of a defendant may also be barred when the State makes minimal efforts to locate a defendant. see Cunnell v. State, 920 So. 2d 810 (Fla. 2nd DCA 2006) [2]. Moreover, if law enforcement believes or is told that the defendant is no longer in the State and then makes no diligent effort to locate the defendant a prosecution outside of the statute of limitations period is barred. Sutton v. State, 784 So. 2d 1239 (Fla. 2nd DCA 2001) [3]. The fact that that the defendant was "absent from the state" does not automatically extend the limitations period indefinitely and cases support the proposition that 775.15 (6) actually bars the prosecution of a defendant three years after the limitations period expires. Goings v. State, 76 So. 3d 975 at 979 (Fla. 1st DCA 2011) citing Lett v. State, 837 So. 2d 614 (Fla. 4th DCA 2007), Robinson v. State, 773 So. 2d 1266 (Fla. 5th DCA 2000), and McGregor v. State, 933 So. 2d 1244 (Fla. 1st DCA 2006).

In Lett v. State, the defendant was charged with a sexual battery while he was in custody out of state, a warrant was issued but was not executed until 20 years later. Lett, 837 So. 2d at 614. In upholding the dismissal of the charges against the defendant in Lett, the Fourth DCA held that § 775.15 (6) allows the Statute of Limitations to be extended on a second degree felony for a maximum of three (3) years if the defendant is absent from the state. Id. In as much, a prosecution for a second degree felony is not automatically tolled indefinitely if a defendant is out of state and shall not extend for more than a total of six (6) years. Id. at 615. Prior to the Fourth DCA opining in Lett, the Fifth DCA upheld the dismissal of the charges against the defendant in Robinson v. State. 733 So. 2d. 1266 (Fla. 5th DCA 2000). In Robinson, the defendant was admittedly absent from the state and unavailable due to the fact that he was residing in Georgia while a Florida warrant remained active. Id. Here the Court dismissed the charges against Robinson after finding that (1) the State did not show sufficient evidence demonstrating that they made a diligent effort to locate the defendant and (2) the prosecution was barred because regardless because it exceeded the three years statute of limitations and additional three years due to the absence of the defendant from the State. Id. The First DCA came to a similar conclusion as the Fourth DCA and the Fifth DCA when it remanded a case for rehearing on the grounds that counsel was ineffective for not raising a statute of limitations claim where the defendant was not prosecuted due to his absence from the state. see McGregor v. State, 933 So. 2d 1244 (Fla. 1st DCA 2006).

The Second District Court of Appeals recently addressed application of the rule barring prosecution when the Statute of Limitations expires. State v. Perez, 72 So. 3d 306 (Fla. 2nd DCA 2011). In Perez, the State filed an information on November 27, 2002 for a Grand Theft (3rd Degree Felony) that was allegedly committed on August 31, 2000, and a capias was issued. Id. Although the information was filed within the limitations period and the capias was issued within the limitations period, the defendant was not arrested until September 9, 2010, almost eight (8) years after the state filed the information and over ten (10) years after the date of offense. In dismissing the charges against the defendant in Perez, the court found that the State did not act diligently in trying to locate a defendant who was absent from the state based on the fact that the State made no attempt to locate the defendant or ascertain her whereabouts during the limitations period. Id. at 308. Additionally the Court found that despite the provisions of 775.15 (6) tolling the Statute of Limitations indefinitely for a defendant who is continually absent from the State the prosecution of Perez was still barred due to unreasonable delay in the prosecution. Id.

[1]At the time that the warrant was issued in this matter, the controlling Statute was 775.15 (6), the legislature has since amended Fla. 775.15 and the applicable subsection is now subsection (5). However; the controlling limitations period is that which was in effect at the time when the crime was committed. State v. Shamy, 759 So. 2d 728 (Fla. 4th DCA 2000).

[2] State's one attempt to serve the defendant with a capias, and lack of information produced by the state establishing any other attempt to locate the defendant or follow up on his whereabouts was not a "diligent search".

[3]Searching the defendant's apartment one time after law enforcement was advised by the defendant's sister that the defendant no linger lives in the State of Florida did not amount to a diligent search of the defendant.

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