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Throughout its history, Florida's Statute Section 775.15 has provided the general rule governing when the statute of limitations act as a bar to prosecution. Other statutes and case law provide for certain exceptions to the general rules.
If your case involves a statute of limitations issue, your attorney must raise it before the trial court or you might waive the issue on appeal.
In fact, on April 12, 2018, in Smith v. State, 241 So.3d 53, 56 (Fla. 2018), the Florida Supreme Court held that a claim that a conviction for a charged offense is barred by the statute of limitations must be raised in the trial court to preserve the issue for direct appeal.
Of course, the holding does not preclude a defendant prejudiced by trial counsel's nonstrategic failure to raise a statute-of-limitations defense from asserting a claim of ineffective assistance of counsel in a Rule 3.850 motion.
For prosecutions in state court, after the defendant raises the issue of the statute of limitations in a "motion to dismiss" as a bar to prosecution, then the State has the burden of showing that:
If the motion is improperly denied by the trial court, then the criminal defense attorney can file a "petition for a writ of prohibition" to a higher court. If granted, the writ of prohibition prevents the prosecutor with the State Attorney's Office from proceeding with the prosecution when the applicable statute of limitations has expired.
The criminal defense attorneys at the Sammis Law Firm fight felony and misdemeanor cases in the Tampa Bay area, including Tampa and Plant City in Hillsborough County.
Contact us to discuss your case pending in Tampa, Hillsborough County, FL, or one of the surrounding counties including Hernando County, Pasco County, Pinellas County, Manatee County, or Polk County, FL.
Florida law provides that a criminal 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."
The statute also provides that the time starts to run on the day AFTER the offense is committed.
Florida law provides that the prosecution on a criminal charge on which the defendant has previously been arrested or served with a summons is "commenced" by the filing of an indictment, information, or other charging document.
Florida law provides that a prosecution on a charge for 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.
Therefore, even if the Information is filed and the warrant is issued within the statute of limitations period, if the Defendant is not arrested until outside the two-year window after the offense allegedly occurs, then the prosecutor with the State Attorney’s Office carries the burden of demonstrating that either:
§ 775.15(5), Fla. Stat.
At a hearing on the motion to dismiss because of the statute of limitations, the trial court must decide if the evidence presented to the trial court supports the finding that:
The prosecutor with the State Attorney’s Office must also meet the burden of demonstrating that Defendant was continuously absent from the state in order to toll the statute of limitations.
Florida law provides that 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.
You must carefully determine which statute of limitations period is applicable for each charge. For example, some types of felony offenses can be charged as a life felony (which has no statute of limitations) or a first-degree felony punishable by life (which is subject to a four-year statute of limitations).
Second (2nd) Degree Misdemeanor - 1 year
First (1st) Degree Misdemeanor - 2 years
Third (3rd) Degree Felony - 3 years
Second (2nd) Degree Felony - 3 years
First (1st) Degree Felony - 2 years
Life Felony - No Statute of Limitations is Applicable
Felony that Results in Death - No Statute of Limitations is Applicable
Capital Felony - No Statute of Limitations is Applicable
Yes, the issue is waived if the criminal defense attorney doesn't raise the issue in front of the trial court.
In deciding the extent to which the statute of limitations can be waived, the courts in Florida have generally taken one of four approaches:
In Smith v. State, 241 So.3d 53, 56 (Fla. 2018), the Florida Supreme Court held for the first time that a claim that a conviction for a charged offense is barred by the statute of limitations must be raised in the trial court to preserve the issue for direct appeal.
This ruling does not preclude a defendant prejudiced by trial counsel's nonstrategic failure to raise a statute-of-limitations defense from asserting a claim of ineffective assistance of counsel in a Rule 3.850 motion. As a practical matter, if the issue wasn't raised it was probably because the attorney didn't realize there was a speedy trial issue because there are very few strategical reasons not to raise the defense.
In other words, if your attorney forgot to raise the statute of limitations issue as a defense, then you might find relief by filing a direct appeal immediately after sentencing or a Rule 3.850 within two (2) years after the conviction becomes final.
Pursuant to 812.035(10), for theft, robbery and related crimes, a criminal or civil action or proceeding under ss. 812.012-812.037 or s. 812.081 may be commenced at any time within five (5) years after the cause of action accrues; however, in a criminal proceeding under ss. 812.012-812.037 or s. 812.081, the period of limitation does not run during any time when the defendant is continuously absent from the state or is without a reasonably ascertainable place of abode or work within the state, but in no case shall this extend the period of limitation otherwise applicable by more than one (1) year.
If a criminal prosecution or civil action or other proceeding is brought, or intervened in, to punish, prevent, or restrain any violation of the provisions of ss. 812.012-812.037 or s. 812.081, the running of the period of limitations prescribed by this section with respect to any cause of action arising under subsection (6) or subsection (7) which is based in whole or in part upon any matter complained of in any such prosecution, action, or proceeding shall be suspended during the pendency of such prosecution, action, or proceeding and for 2 years following its termination.
This five-year statute of limitations applies to the criminal offenses in Florida that are now included within the theft statute but were previously classified as:
At common law, there was no set time limit restriction under which a criminal charge was barred from prosecution. Time limitations, or statutes of limitation, for criminal prosecutions exist as a creation of statute. In State v. Hickman, 189 So. 2d 254, 261 (Fla. 2d DCA 1966), the court explained:
The only purpose of a Statute limiting the time within which a criminal charge may be prosecuted is to protect every person from being interminably under the threat or cloud of possible criminal prosecution, which otherwise might be indefinitely delayed until the time when defense witnesses might die, disappear or otherwise become unavailable, judges would change office, or innumerable other time hazards might develop, which could conceivably defeat, or at least hamper, an otherwise good defense.
Since the creation of statutes of limitation, courts have held that the statute of limitation that was in effect when a crime was committed generally controls. See Beyer v. State, 76 So. 3d 1132, 1135 (Fla. 4th DCA 2012). Furthermore, the statutes of limitation in criminal cases should be construed liberally in favor of the defendant. Id.
The Florida Legislature may extend the limitations period without violating the ex post facto clause of the Florida Constitution, FLA. CONST. art. I, s.10., if the Florida Legislature makes the change before the prosecution is barred under the old statute and clearly demonstrates that the new statute applies to cases pending when the extension takes effect. See Section 775.15(3) F.S.; Andrews v. State, 392 So. 2d 270, 271 (Fla. 2d DCA 1980).
Section 775.15, F.S., sets forth time limitations, or statutes of limitation, after which criminal prosecutions are barred. The statute of limitation for prosecuting a criminal case begins to run on the day after the offense is committed. Id.
An offense is deemed to have been committed when either every element of the offense has occurred or if it plainly appears that the legislative purpose is to prohibit a continuing course of conduct, at the time when the course of conduct or the defendant’s complicity therein is terminated. Id.
Section 775.15, F.S., provides the following time limitations for initiating a criminal prosecution for a felony offense: Section 775.15, F.S., provides the following time limitations for initiating a criminal prosecution for a felony offense:
Florida law also provides for certain very specific exceptions based on the identity of the accused. For instance, for certain offenses, the case may be prosecuted at any time after the date on which the offender's identity is established, or should have been established through the exercise of due diligence, through the analysis of DNA evidence.
Those exceptions based on the discovery of the identity of the accused include:
If a DNA sample is the basis for the exception, then for these prosecutions, the DNA sample must be available for testing by the accused. See Section 775.15(16)(a)4., F.S.
Florida law also provides an extension of time for certain types of charges if a victim is under the age of 18 including:
In these cases, Section 775.15(13)(a) provides that the applicable period of limitation does not begin to run until the victim reaches the age of 18 or the violation is reported to a law enforcement or governmental agency, whichever occurs first.
If a victim 18 years or older reports a first or second-degree felony sexual battery within 72 hours of the crime, there is no statute of limitation.
If the victim does not report the crime within this time period, the statute of limitation is 4 years for a first-degree felony sexual battery. As provided in Section 775.15(14), F.S., first-degree felony sexual battery is defined as non-consensual sexual battery under certain enumerated circumstances, including in part, the victim is physically helpless to resist, the victim is threatened, the victim is physically or mentally incapacitated, or the offender is law enforcement. Section 794.011(4), F.S.
If the victim does not report the crime within this time period, the statute of limitation is 3 years for a second-degree felony sexual battery. Likewise, if a 16 or 17-year-old who is a victim of a second degree felony sexual battery does not report the crime within 72 hours, the applicable time period to bring a prosecution is 3 years.
As provided in Section 775.15(14), F.S., second-degree felony sexual battery is defined as a non-consensual sexual battery without the use of physical force or violence likely to cause serious personal injury. Section 794.011(5)(b), F.S.
The 3-year limitation does not commence until the earlier of the date that the victim turns 18 or the crime is reported. Section 775.15(13)(a), F.S.
Prior to 2018, the Florida Supreme Court had never expressly considered the rules for the preservation of a statute-of-limitations defense.
But in State vs. Smith, the Court held that the statute of limitations does not make timeliness a nonwaivable issue of jurisdiction. Id. at ___ (citing § 775.15, Fla. Stat. (2017); § 775.15, Fla. Stat. (Supp. 1990)). In other words, a defendant must raise a claim that conviction of a charged offense violates the statute of limitations in the trial court to preserve the issue for a direct appeal.
A similar concept was explained in Musacchio v. United States, 136 S. Ct. 709, 718 (2016), then the United States Supreme Court, when considering the federal statute of limitations explained that:
[A] statute-of-limitations defense becomes part of a case only if the defendant puts the defense in issue. When a defendant presses a limitations defense, the Government then bears the burden of establishing compliance with the statute of limitations by presenting evidence that the crime was committed within the limitations period or by establishing an exception to the limitations period.
When a defendant fails to press a limitations defense, the defense does not become part of the case and the Government does not otherwise have the burden of proving that it filed a timely [charging document].
When a defendant does not press the defense, then, there is no error for an appellate court to correct -- and certainly no plain error.
Read more about the statute of limitations for Florida DUI cases.
For more information on how the statute of limitations might be applicable in your criminal case, contact an experienced criminal defense lawyer in Tampa, FL, with the Sammis Law Firm. If your case was not commenced within the applicable statute of limitations time period, then you can file a motion to dismiss the case.
We represent individuals charged with misdemeanor and felony offenses throughout the Tampa Bay area including the courthouses in Tampa and Plant City in Hillsborough County, Clearwater in Pinellas County, Lakeland and Bartow in Polk County, New Port Richey and Dade City in Pasco County, and Brooksville in Hernando County, FL.
Contact our attorneys if you have questions about how the statute of limitations in Florida is impacted by an allegation of property damage, theft or drug charges.
Call 813-250-0500 to discuss your pending charges today.
This article was last updated on Monday, August 20, 2018.
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Jason D. SammisTampa native with 15 years experience. University of Florida College of Law Graduate...Read more
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