STATE OF FLORIDA, APPELLANT,
v.
PHILLIP BARE, APPELLEE
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Florida's state appeal of a dismissal based on the statute of limitations for grand theft charges. The court held that Section 812.035(10), providing a five-year limitations period for theft-related offenses, supersedes the general three-year limitations period in Section 775.15(2)(b), thereby reviving the prosecution.
Section 812.035(10) supersedes the general three-year limitations period in Section 775.15(2)(b). The plain language of Section 812.035(10)—stating it applies "notwithstanding any other provision of law"—establishes a five-year limitations period for theft prosecutions. Because the information was filed within five years of the alleged conduct, the trial court erred in dismissing the grand theft count.
[1] A criminal action for grand theft, a third-degree felony, must generally be commenced within three years of the commission of the offense.
[2] A statute providing a five-year limitations period for criminal actions under sections 812.012-812.037 of the Florida Statutes, which applies "notwithstanding any other p…
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Join FLexlaw to unlock all legal intelligence“Notwithstanding any other provision of law, a criminal or civil action or proceeding under ss. 812.012-812.037 may be commenced at any time within five years after the cause of action accrues.”
Establishes the five-year limitations period for theft prosecutions that the court found supersedes the general three-year period.
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Join FLexlaw to unlock all legal intelligenceOn May 15, 1984, an information was filed charging Phillip Bare with grand theft and fraud based on actions taken between September 6-28, 1980, involv…
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COBB, Chief Judge.
On May 15, 1984, an information was filed against the appellant. The information, as amended, charged the appellant with one count of grand theft and one count of fraud in the course of business. The bases for the information were certain actions taken by Bare between September 6 and 28, 1980, involving a home improvement contract with Thomas and Janet Burch. Subsequently, Bare moved to dismiss the information, stating that the statute of limitations had expired. The lower court granted this motion. The state appeals the dismissal as to count one of the information.
Section 775.15(2)(b), Florida Statutes, imposes a three-year period for commencement of prosecution after the commission of any felony other than a capital felony, life felony or felony of the first degree. Bare was charged with grand theft in violation of section 812.014(2)(b), Florida Statutes, which provides for grand theft of the second degree, a third-degree felony.
The state argues, however, that section 812.035, Florida Statutes (1983), supersedes this statute of limitations. Section 812.035 provides, in pertinent part:
Civil remedies; limitation on civil and criminal actions.—
* * * * *
(10) Notwithstanding any other provision of law, a criminal or civil action or proceeding under ss. 812.012-812.037 may be commenced at any time within five years after the cause of action accrues. 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, 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 two years following its termination. (Emphasis added).
The state argues that since this section applies to both civil and criminal proceedings, and clearly states that it will apply “notwithstanding any other provision of law,” it supersedes section 775.15(2)(b). There are no cases discussing this argument. A plain reading of the statute supports the state’s argument. Although section 812.035 generally deals with civil remedies such as forfeiture and private civil actions, it does not appear that there could be any other reasonable way to interpret subsection (10). Thus, as the filing of the information was within the five-year time frame, the trial court erred in dismissing count one of the complaint. This case is reversed and remanded to the trial court.
REVERSED and REMANDED.
FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur.
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State v. Chacon, 479 So. 2d 229 (Fla. 3d DCA 1985)…1981), but, as the Fifth District has recently held, the five-year statute under Section 812.035(10), Florida Statutes (1981), which is made specifically applicable to all theft prosecutions notwithstanding any other contrary statute. State v. Bare, 473 So. 2d 799 (Fla. 5th DCA 1985). Section 812.035(10), Florida Statutes (1981) reads in pertinent part as follows: “Notwithstanding any other provision of law, a criminal ... action or proceeding under ss. 812.012-812.037 may be commenced at any time within 5 y…
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State v. Hampton, 692 So. 2d 278 (Fla. 5th DCA 1997)…37 or s. 812.081 may be commenced at any time within five years after the cause of action accrues. (Emphasis supplied). In support of its position, the state cites to the conflict between Wells and an earlier opinion from this court, State v. Bare, 473 So. 2d 799 (Fla. 5th DCA 1985). Other district courts are in agreement with Bare. See, e.g., O’Malley v. Mounts, 590 So. 2d 437 (Fla. 4th DCA 1991), rev. denied, 595 So. 2d 557 (Fla.1992); State v. Guthrie, 567 So. 2d 544 (Fla. 2d DCA 1990); Franklin v. State,…
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State v. Telesz, 873 So. 2d 1236 (Fla. 2d DCA 2004)…is the five-year statute under section 812.035(10), “which is made specifically applicable to all theft prosecutions notwithstanding any other contrary statute”), reversed on other grounds, State v. Fields, 505 So. 2d 1336 (Fla.1987); State v. Bare, 473 So. 2d 799, 800 (Fla. 5th DCA 1985) (concluding that the statute of limitations period in section 812.035(10) supersedes section 775.15(2)(b)). We note that there is no language in section 812.035(10) or section 775.15 which would suggest that the limitations…
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