IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT IN AND FOR SEMINOLE COUNTY, FLORIDA
CASE NUMBER: 2003-CF-0000-A-O
STATE OF FLORIDA Plaintiffvs.
THE ACCUSED, Defendant. /
MOTION TO DISMISS AND/OR MOTION FOR DISCHARGE
COMES NOW the Defendant, THE ACCUSED, by and through his undersigned attorney, and pursuant to Rule 3.190 of the Florida Rules of Criminal Procedure, and hereby requests that this Court dismiss the information against the Defendant and, and as grounds therefore states as follows:1. The Defendant is charged in this case with two (2) counts of Obtaining Property by Fraud and two (2) counts of Theft, all second degree felonies.2. The State filed an Information against the Defendant on November 20, 2003, and a capias was issued November 24, 2003.3. The Defendant was served with the capias and was arrested on December 19, 2012.4. The statute of limitations for the felony counts is three (3) years.5. Based upon the dates of the alleged crimes, the statute of limitations on all four counts expired on June 1, 2004. 6. The State did not commence prosecution until December 19, 2012, long after the statute of limitations expired on all four counts.
WHEREFORE, the Defendant respectfully asks this Court to dismiss the Information in the case due to the expiration of the statute of limitations.
Memorandum of Law
The applicable statutes are as follows:
F.S. 775.15(2)b: A prosecution for any other felony [other than a first degree felony] must be commenced within 3 years after it is committed.
F.S. 775.15(2)c: A prosecution for a misdemeanor of the first degree must be commenced within 2 years after it is committed.
F.S. 775.15(4): An offense is committed either when every element has occurred or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the defendant’s complicity therein is terminated. Time starts to run on the day after the offense is committed.
F.S. 775.15(5)b: A prosecution on a charge on which the defendant has not previously been arrested or served with a summons is commenced when either an indictment or information is filed, provided the capias, summons, or other process issued on such indictment or information is executed without unreasonable delay. In determining what is reasonable, inability to locate the defendant after diligent search or the defendant’s absence from the state shall be considered. The failure to execute process on or extradite a defendant in another state who has been charged by information or indictment with a crime in this state shall not constitute an unreasonable delay.
Statute of Limitations
The issue for this Court’s determination is whether the State “commenced” prosecution before the statute of limitations expired. To make this determination, several questions must first be answered:
1. When was the alleged crime committed?2. When did the statute of limitations begin to run?3. What is the applicable statute of limitations?4. When did the applicable statute of limitations expire?5. When did prosecution commence? a. When was the Information filed? b. When was the capias issued? c. When was the capias executed? d. Was the delay in executing the capias unreasonable?
When was the alleged crime committed? The Defendant is charged with four counts of Theft and Fraud in connection with events that took place between January 31, 2001 and June 1, 2001. All four counts allege Theft and Fraud are considered a second degree felony. The State has alleged that the offenses were committed (i.e. every element occurred) between January 31, 2001 and June 1, 2001. See F.S 775.15(4).
When did the statute of limitations begin to run?The statute of limitations (SOL) began running the following day, June 2, 2001. See F.S. 775.15(4)
What is the applicable statute of limitations? The SOL on the four felony counts expired on June 1, 2004.
When did prosecution commence? At the time the information was filed and the capias was issued, the Defendant had not been arrested or served with a summons for these charges. Florida Statute 775.15(5)b states that in such a situation, the prosecution is commenced when the Information is filed and the capias is executed, but only if the capias is executed without unreasonable delay. The State filed the Information on November 20, 2003, 2 years, 5 months, and 19 days after the initial alleged offenses were committed–but well within the SOL. The State issued a capias four days later. The next step is to determine when the capias was executed, and hence whether or not it was executed without unreasonable delay.
A capias is executed when the defendant is personally served with the capias. State v. Fields, 505 So.2d 1336 (Fla. 1987); Bragenzer v. State, 582 So.2d 142 (5th DCA 1991). The capias in the case was executed on December 19, 2012, more than 11 years after the alleged offenses. Given that the Information was filed on November 20, 2003 and the capias was not executed until December 19, 2012, the key question becomes: “Was the delay in executing the capias unreasonable?”
“When a criminal defendant challenges [his] prosecution as untimely commenced under the statute of limitations, the State has the burden to prove that the prosecution is not barred by the statute.” Newman v. State, 707 So.2d 811 (1st DCA 1998); Neal v. State, 697 So. 2d 903, 905 (2nd DCA 1997); Bonel v. State, 651 So.2d 774 (3rd DCA 1995); Bragenzer, supra; Wright v. State, 600 So.2d 1248 (5th DCA 1992). “An unexcused delay in serving the appropriate process until after the statute of limitations has run bars prosecution for the offenses charged.” Id. However, the State can revive the prosecution in one of two ways: (1) by establishing that the limitations period was tolled such that the capias was executed within the statute of limitations, or (2) by demonstrating that the delay was not unreasonable because the State made a diligent effort to serve the capias within the limitations period. Id. F.S. 775.15(6) states that the statute of limitations is tolled during any time when the defendant is continuously absent from the state or when he does not have reasonably ascertainable place of abode or work within the state. In order to benefit from this tolling provision, the State must present evidence to establish one of these grounds. The State will not be able to rely on this tolling provision, however, because even though the Accused was arrested in Lexington, Kentucky, he has not been continuously absent from the state, and he have had a reasonably ascertainable place of abode. This leaves the State with just one way to revive the prosecution: to present evidence establishing that it made a diligent effort to serve the capias before the statute of limitations expired.
The State’s burden [is] to prove that it actually made a diligent search for [the defendant], that it [was] unable to locate [him] and that its failure to serve the capias in a timely fashion resulted from the inability. This burden could not be met by the State’s mere suggestion that [the defendant] would have been difficult to find if a search had been made. Neal, at 906.
“The issues in pre-arrest delay are whether the capias was executed without unreasonable delay and whether the state was diligent in its efforts to execute the capias in order to bring the defendant before the court within the statutory limit.”Bragenzer, supra; Bonel, supra; Brown v. State, 674 So.2d 738 (2nd DCA 1995).
The Fourth District Court of Appeal has adopted a “common sense approach” for evaluating the issue of a diligent search in criminal cases. State v. Mack, 637 So.2d 18 (4th DCA 1994).
We hold that the state must check obvious sources of information and follow-up any leads to establish a diligent search. Obvious sources of information include the telephone book, the city directory, driver’s license records, property tax records, voter’s registration records, the probation office, local utility companies, law enforcement agencies, state attorney’s office, schools, armed forces, and prison system. Other sources are relatives of the defendant and witness in the case. Mack. at 19-20.
The court also added marriage and name-change records to the above list. Other obvious sources included postal records. “If obvious sources of information are not utilized, there is not a diligent search.” Id., at 19, citing Kyte v State, 49 Fla. Supp.2d 40, 42 (5th Cir. Ct. 1991). The appropriate test is whether the State reasonably used the knowledge at its command. Id. The defendant in a criminal case does not have an affirmative obligation to seek to be arrested. The burden is entirely on the State to make a diligent search for the defendant and to make a diligent effort to serve him. The statute of limitations is a jurisdictional issue. Once the statute of limitations expires, the court loses jurisdictions to hear the case. The issue must be considered under the guiding principle that “[s]tatutes of limitation in criminal cases are to be liberally construed in favor of the accused.” Mack, supra, at 776.
The courts have held in the following cases that the State did not make a diligent search and/or that the delay in executing the capias was unreasonable:
1. An officer checked the defendant’s residence in Broward County once and discovered that he had moved and not left a forwarding address; notation in file indicated defendant had possibly moved to Largo, Florida; Tampa investigator checked with property management company at defendant’s supposed address in Largo, telephone company and utility company; criminal background check and driver’s license check revealed nothing; a second driver’s license check six year later revealed defendant had driver’s license under a different name and it was discovered that defendant had obtained a marriage license in Broward County 11 months after the Information was filed by the State; capias executed 10 ½ years after alleged offense. State v. Mack, supra.
2. Officer made one attempt to serve capias at defendant’s address one week after it was issued; officer checked with postal authorities, telephone company, and the electric company; capias served 4 years after alleged offense. Chapman v. State, 581 So.2d 995 (2nd DCA 1991).
3. Capias executed 3 years and 7 months after alleged offense. Wells v. State, 571 So.2d 563 (5th DCA 1990), receded from on other grounds, State v. Hampton, 692 So.2d 278 (5th DCA 1997).
4. Defendant’s probation officer on another case never saw him or had any contact with him; she sent him a letter but never received a reply; she left a card at his residence but defendant never responded; defendant failed to submit monthly reports 11 times; capias executed 3 years 3 months after alleged offense. Wright v. State, supra.
5. Officer made single attempt to serve defendant; check of phone book and city directory revealed nothing; capias executed 10 ½ years after alleged offense. Walker v. State, 543 So.2d 353 (5th DCA 1989).
6. Single attempt to locate defendant; capias executed 4 years and 2 months after alleged offense. State v. Watkins, supra.
7. Capias executed 3 years 9 days after alleged offense. Bonel, supra.
8. Defendant was out of state in federal prison, then spent 2 ½ months in Florida jails before being taken back to federal prison in Georgia; capias executed 10 ½ years after alleged offense. Brown v. State, supra.
9. Clerical aide for sheriff’s office testified that general procedure for warrants is that information is entered into a computer and made available to all law enforcement officers in the state; capias executed 5 years after alleged offense. Newman v. State, supra.
10. One attempt to serve defendant; capias executed 3 years and 11 months after alleged offense. Lucas v. State, 718 So.2d 905 (3rd DCA 1998).
11. State asserted that defendant had 8 aliases, her last known address was in Lakeland, Florida, and she had no vehicle registered in her name, no property, no insurance, no driver’s license, no professional license, and no voter registration; capias executed 5 years and 3 months after alleged offense. Neal v. State, supra.
As indicated by the above examples, the burden on the State is high. It must present evidence that it made a diligent search for the defendant and a diligent effort to serve the Defendant within the statute of limitations. The State will be unable to meet its burden. The Defendant was very easy to find, and even a minimal effort by the State would have resulted in his arrest by serving the capias. Because the State cannot meet its burden and cannot establish that it made a diligent search for the defendant, the delay in executing the capias was unreasonable. The State did not commence prosecution prior to the expiration of the statute of limitations, and this case must be dismissed.
The State failed to commence prosecution before the statute of limitations expired. Accordingly, the charges against the Defendant should be dismissed and the Defendant is entitled to be discharged.
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Motion to Dismiss was provided to Office of the State Attorney, 101 Bush Blvd., Sanford, Florida, this 20th day of March, 2013.
BY: ____________________________JOHN P. GUIDRY II, EsquireAttorney for The Accused320 N. Magnolia Ave. Ste B-1Orlando, Florida 32801Phone (407) 423-1117Fax (407) firstname.lastname@example.orgFlorida Bar Number 0990086