Statute of Limitations

STATUTE OF LIMITATIONS (and a blip about Speedy Trial)

The burning question is, how long does the State have to file charges against it's citizens?  The Statute of Limitations puts a time limit on the State's ability to "start" the process of pressing charges, and this starting point usually comes down to two dates: (1) the date an "information" is filed, and (2) the date the warrant is served on a defendant.  When a statute of limitation issue is raised, the burden is on the State to diligently attempt to serve their warrant within the time periods set forth in the statute of limitations (Section 775.15 for all crimes but theft, theft statute found in 812.035(1) Florida Statutes).  Once the prosecution has filed charging papers, they have met their first burden under the Statute of Limitations.  It is the second burden that is typically the subject matter of a Motion to Dismiss based upon the statute of limitations.  

HOW LONG DOES THE STATE HAVE TO FILE AN INFORMATION?

Technically, there are really two hurdles to jump on a statute of limitations action.  First, the state must file an "Information" within the following time limits.  Most first degree felony cases must begin prosecution within 4 years after the crime was committed.  All other felony charges must begin prosecution within 3 years after the crime was committed.  The exception here involves theft crimes, the limitation is extended to 5 years for thefts. And, if the defendant is shown to be out of state, the theft limitation may be extended one year for a total of 6 years, and the other felony charges may be extended for an additional three years (for a total of 6). 

For a misdemeanor case, if it is a first degree misdemeanor, prosecution must begin within 2 years.  A second degree misdemeanor must begin within 1 year.  As you might expect, a capital crime and a life felony have no start date, thus the Statute of Limitations does not apply.

HOW LONG DOES THE STATE HAVE TO EXECUTE THE WARRANT? 

Remember, when the State files its charging document within the time periods listed above, these charges can still be dismissed under the statute of limitations if the State fails to execute the warrant in a timely manner.  So, the timely execution of an arrest warrant is typically the most important question.  And, to answer this question, the courts will examine whether or not the state's delay in finding a defendant was reasonable.  Whether or not it was reasonable depends on many factors, a few of which are listed in the examples below.

EXAMPLE #1: the State files a felony aggravated assault within the 3 year statute of limitation, but it takes them over 4 years to serve the warrant.  Does this violate the statute of limitations?  Maybe, maybe not.  It depends on whether or not the 4 years it took to serve the warrant was a reasonable delay.  

In the case of State v. Watkins, the warrant was executed over four years after the aggravated assault. 685 So.2d 1322 (Fla. 2nd DCA 1996).  Section 775.15 of the Florida Statutes requires a capias/warrant to be executed without "unreasonable delay".  To determine what is reasonable, a court will weigh factors such as the diligence of law enforcement's search, or the defendant's absence from the state.  In Watkins, the Information was filed within the three year period, but law enforcement made only one documented effort to locate Watkins during the 4 year period!  As such, the court found that simply searching for Watkins one time in 4 years constituted an unreasonable delay.  Case dismissed, as not enough effort was put forth to execute the warrant.

EXAMPLE #2:  In Lucas v. State, a warrant was served 3 years and 11 months after the alleged offense.  718 So.2d 905 (3rd DCA 1998).  It was shown that law enforcement only made one attempt to locate the defendant, so the case was dismissed as there was an unreasonable delay in the execution of the capias.

EXAMPLE #3: State asserts that the defendant has 8 aliases, her last known address was in Lakeland, Florida, and she has no vehicle registered in her name, no property, no insurance, no driver's license, no professional license, and no voter registration; warrant executed 5 years and 3 months after the alleged offense--case dismissed! Neal v. State, 697 So.2d 903 (Fla. 2nd DCA 1997)  Now, the state could have won this case had they shown that its service of process beyond the limitations period was not unreasonable because they had been unable to find Neal after a diligent search, but the State never presented evidence of a diligent search, and the court held that "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.  (as you'll see below, if the state could have shown that Neal was continuously out of state, they wouldn't have needed to made any sort of diligent search)

GENERAL RULE: the burden is on the State to present evidence explaining or excusing its delay in serving an arrest warrant.  Such evidence of a diligent search can be found via a search of "the telephone book, the city directory, driver's license records, vehicle license records, the probation office, local utility companies, law enforcement agencies, state attorney's office, schools, armed forces, the prison system, relatives of the defendant, witnesses in the case, and marriage and name change records". id.   If law enforcement fails to present evidence of looking in these places several times, its going to be a good day for the defense.

EXCEPTION TO THE GENERAL RULE (there's always exceptions, here's a major one): The state doesn't have to show they conducted a diligent search if the state can prove that the defendant was continuously absent from the state.  Once the state proves a defendant was continuously out of state, the statute of limitations is "tolled". And the exception goes even further, because once the prosecution demonstrates that the person was out of state, they are under no obligation to prove their search was "hindered" by the defendant being out of state.  For a more detailed discussion of this issue, see the Florida Supreme Court's decision in Brian Robinson v. State (Fla. 2016, No. SC15-233, November 17, 2016, this case comes from the 1st DCA, 153 So. 3d 313, not the other Robinson case listed below out of the 5th DCA.  Confusing, I know).

HOW DOES MOVING OUT OF STATE AFFECT THE STATUTE OF LIMITATION? 

As mentioned above, a move out of state will cause the statute of limitations to be extended.  To understand the problem, take a look at Florida Statute 775.15:

(4)(b) A prosecution on a charge ... 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.

(5) The period of limitation does not run during any time when the defendant is continuously absent from the state or has no reasonably ascertainable place of abode or work within the state.  This provision shall not extend the period of limitation otherwise applicable by more than 3 years, 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.  [emphasis added]

See the problem here?  Look at (5) above.  It states that the period does "not run during any time when the defendant" is out of state.  But, read the next sentence, which places a "cap" on this "not run" time, noting that in no event shall the time limit be extended "by more than 3 years".  Confusing, right? 

Let's look at some examples.  The First District Court of Appeals in Pearson v. State found that, because the defendant was continuously absent from the state, "his absence resulted in the tolling of the statute of limitations." 867 So.2d 517 (Fla. 1st DCA 2004).  Thus, this court seems to believe that criminal charges may go on forever, so long as an accused moves out of state!  Forever is a long time.  Notice that this court completely ignores the next sentence in 775.15(5), which states that the tolling of the statute shall not extend the term by more than three years.  The Florida Supreme Court decision in Brian Robinson v. State supports the notion that absence from the state tolls the statute of limitations, but the court ignores any discussion of a 3 year cap on the tolling provision.

A better analysis can be found in an older "Robinson" case out of the Fifth District Court of Appeals.  Robinson v. State, 773 So. 2d 1266 (Fla. 5th DCA 2000).  In Robinson, the State requested that the appeals court apply the plain language of (5) above to stop the running of the statute due to the fact that Robinson moved out of state, and used several aliases.  The Fifth DCA wasn't buying it.  They correctly reasoned that the initial statute of limitations term on these felonies was 3 years, but that that time was extended by an additional 3 years due to the fact that the defendant moved out of state.  Even after having 6 years to work with, the State did not serve Robinson until beyond the 6 year mark--so the court dismissed all charges.  Thus, the out of state factor bought the state an additional 3 years, but not an infinite window of time.   As you can see, this court refused to follow the reasoning found in Pearson, in which the "tolling" provision is seen as an excuse to delay serving a warrant indefinitely.  The Robinson court reigns in this "infinite tolling" mentality found in Pearson, holding that tolling period may only be extended for 3 years.  

The First District stands by its decision in Pearson, though it admits that "some cases suggest that subsection [5] automatically bars (further) prosecution three years after the primary limitations period expires" on out of state defendants.  Goings v. State, 76 So.3d 975 (Fla. 1st DCA 2011).  For example, in Lett v. State, 837 So.2d 614 (Fla. 4th DCA 2003), that court held that the statute of limitations can only be extended by a maximum of three years in cases in which a defendant is continuously absent from the state.

VIOLATIONS OF SPEEDY TRIAL RIGHTS

The statute of limitations and speedy trial rules both place time limits on our government's ability to prosecute citizens, yet these concepts operate independently of one another.  Because some folks mistakenly use these terms interchangeably, I'm going to give you a little taste of speedy trial rules to clear up any confusion out there (and, because I'm too tired to write a whole separate page devoted to speedy trial--this little corner of my SOL page will have to do for now).  

There are two types of speedy trial rights, those created by statutory rule, and those found in the Constitution.  First, the Florida rules.  According to Florida's speedy trial rule found in Rule 3.191(a), "every person charged with a crime shall be brought to trial within 90 days of arrest if the crime charged is a misdemeanor, or within 175 days of arrest if the crime charged is a felony".  Notice that, with the Statute of Limitations, it is the date that the crime was committed that triggers the starting of the clock.  But with speedy trial, it is an arrest that starts the clock rolling.  For a more information on how this works, check out my article creatively entitled "How Long Does the State Have to File Charges After an Arrest".   

In addition to Rule 3.191, we have a right to a speedy trial via the Sixth Amendment to the U.S. Constitution.  Our constitutional speedy trial rights does not have a number attached to it, like the 90 day and 175 day limits found in the Florida rules, but if you dig deep enough into the case law, you'll see some time limitation patterns emerge.  The Sixth Amendment speedy trial provisions look to several factors, such as the length of the delay, the reason for the delay, and what prejudice this delay has caused the defendant.  For a deeper analysis of our Constitutional right to a speedy trial, click on my article "When Delay Leads to Dismissal."

There are so many exceptions to the above examples, so many court interpretations, that it's important to check in with Mr. Guidry regarding any concerns you may have on statute of limitation issues.  Go ahead and call, the number is 407.423.1117.
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