STATE OF FLORIDA EX REL. CLARENCE V. RIDENOUR AND JOHN R. BOSTROM, PETITIONERS,
v.
THE HONORABLE FRED L. BRYSON, AS ONE OF THE JUDGES OF THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, IN AND FOR PINELLAS COUNTY, FLORIDA, RESPONDENT
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Florida petitioners sought a writ of prohibition to prevent trial on four conspiracy counts, arguing the statute of limitations had expired. The court held that conspiracy is a separate substantive crime requiring its own statute of limitations period, and the applicable two-year general limitations period for the 1975 conspiracy dates had expired by the time the April 1979 information was filed.
The court held that conspiracy is a separate and distinct substantive crime from the underlying offense and is not entitled to the same statute of limitations period. The applicable statute of limitations for the 1975 conspiracies was the general two-year period under Section 932.465, Florida Statutes (1973), which had expired by April 1979.
[1] A writ of prohibition is a proper procedural remedy to prevent prosecution when the statute of limitations has expired.
[2] Conspiracy is a substantive crime distinct from the offense that is the object of the conspiracy.
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Join FLexlaw to unlock all legal intelligence“conspiracy is a substantive crime that is separate and distinct from the offense which underlies it”
Establishes the fundamental principle that conspiracy cannot automatically adopt the statute of limitations of the underlying crime
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Join FLexlaw to unlock all legal intelligenceOn April 30, 1979, the state filed a twelve-count information against petitioners and two other defendants. The first eight counts charged illegal sal…
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GRIMES, Chief Judge.
Petitioners seek a writ of prohibition to prevent their trial on four counts of a twelve count information, arguing that the statute of limitations has run as to those offenses.1
On April 30,1979, the state filed a twelve count information against petitioners and two. other defendants. The first eight counts charged them with the illegal sale of securities. The last four counts, with which we are now concerned, charged them with conspiracy to unlawfully sell securities. In count nine, the state charged that the conspiracy occurred between August 1, 1975, and August 15, 1975, in count ten between August 5, 1975, and August 25, 1975, in count eleven between August 15, 1975, and September 5, 1975, and in count twelve on September 30, 1975.
Petitioners filed motions to dismiss counts nine through twelve on the grounds that the statute of limitations barred their prosecution. The court denied the motions. Following the filing of this action here, we issued an order to show cause and stayed trial on the four counts. Upon a study of the state’s response, we now conclude that the petitioners are entitled to a writ of prohibition.
There is a special five year statute of limitations for the illegal sale of securities. § 517.302, Fla.Stat. (1977).2 The trial court apparently felt that the statute of limitations for a conspiracy to commit a certain offense should carry the same limitations period as the offense which was the object of the conspiracy. We cannot accept this proposition because it is well settled that conspiracy is a substantive crime that is separate and distinct from the offense which underlies it. See State v. Burkett, 344 So. 2d 868 (Fla.2d DCA 1972); 16 Am. Jur.2d Conspiracy § 5 (1979).
The statute of limitations to be used in determining whether a prosecution is timely is the one that is ip effect at the time of the crime. State v. Wadsworth, 293 So. 2d 345 (Fla.1974). Here, the state alleged that the conspiracies occurred on dates ranging from August 1, 1975, to September 30, 1975. The general statute of limitations at that time was Section 932.465, Florida Statutes (1973), which imposed a two year limitations period for all offenses not punishable by death.3 Obviously, conspiracy to unlawfully sell securities is an offense not punishable by death.4 Therefore, since the state filed its information more than three years after the last date upon which it alleged that the conspiracies had occurred, the statute of limitations bars the prosecution of petitioners for those conspiracies.
We hereby enter a final judgment prohibiting the trial court from trying petitioners on the four counts discussed in this opinion.
SCHEB and DANAHY, JJ., concur. . A petition for a writ of prohibition is a proper method of seeking to prevent prosecution where the limitations period has run. See Reino v. State, 352 So. 2d 853 (Fla. 1977).
. This statute refers to all offenses proscribed by Chapter 517 but there is no reference to conspiracy in that chapter. . The statute of limitations is now Section 775.-15, Florida Statutes (1979), which went into effect on October 1, 1975. Ch. 74-383, § 10, Laws of Fla.; Ch. 75-24, Laws of Fla. .See § 517.302, Fla.Stat. (1973), which makes the illegal sale of securities a third degree felony; § 833.04, Fla.Stat. (1973), which makes a conspiracy to commit a third degree felony a third degree felony.
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Murray Rubin v. State, 390 So. 2d 322 (Fla. 1980)…riminal prosecution is a substantive matter and consequently that the statute of limitations in effect at the time of the commission of the offense is controlling. See also Reino v. State, 352 So. 2d 853 (Fla.1977); State ex rel. Ridenour v. Bryson, 380 So. 2d 468 (Fla. 2d DCA 1980). As to the second point, the State argues that even if the two-year statute applies, the trial court did not err in denying Rubin’s motion to dismiss since the first information was timely filed and the second information, contai…
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Webster v. State, 646 So. 2d 752 (Fla. 2d DCA 1994)…Connor v. State, 590 So. 2d 1018, 1020 (Fla. 5th DCA 1991). See also Edwards v. State, 516 So. 2d 285 (Fla. 2d DCA 1987). Since conspiracy is a substantive crime that is separate and distinct from the offense which underlies it, see State v. Bryson, 380 So. 2d 468 (Fla. 2d DCA 1980), an accused’s mere presence at the scene of an offense is insufficient to establish guilt of conspiracy to commit that offense, see Gonzalez, 455 So. 2d at 1132. Though the instant record shows that a confidential police informa…
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Authorities Cited
- Rushing v. Jacksonville Elec. Auth., 352 So. 2d 853 (Fla. 1977)
- State of Fla. ex rel. Arthur Eugene Manucy v. The Honorable W. L. Wadsworth, 293 So. 2d 345 (Fla. 1974)
- Renaldo Reino, Sr. v. The State of Fla. & the Honorable Gerald T. Wetherington, 352 So. 2d 853 (Fla. 1977)
- State v. Burkett, 344 So. 2d 868 (Fla. 2d DCA 1977)