LINDA LOWE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Linda Lowe challenged her conviction after signing a written waiver of the statute of limitations as a condition of entering a pre-trial diversion program. The Florida appellate court upheld the waiver, finding it valid and distinguishing the case from Tucker v. State, which required personal waiver of an accrued statute of limitations defense.
The statute of limitations does not limit a court's jurisdiction over criminal charges. A prospective waiver of the statute of limitations signed before the statute had run and before charges were filed—as a condition to enter a pre-trial diversion program—is valid and does not require counsel assistance, distinguishing it from the rule in Tucker v. State which applies to waivers of accrued statutes of limitations after charges are filed.
[1] A statute of limitations on a criminal charge is not jurisdictional and can be waived.
[2] A waiver of the statute of limitations on a criminal charge, executed prospectively before charges are filed and in exchange for consideration for a pre-trial diversion p…
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Join FLexlaw to unlock all legal intelligence“In Florida, statutes of limitation on crimes do not limit the jurisdiction of courts to try criminal charges.”
Establishes that the statute of limitations is not jurisdictional and therefore can potentially be waived.
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Join FLexlaw to unlock all legal intelligenceLowe was accused of public assistance fraud and signed a written waiver of the statute of limitations to participate in the Orange County state attorn…
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COWART, Judge.
Faced with an accusation of public assistance fraud, the defendant signed a written waiver of the statute of limitations on the possible criminal charge as a condition to participation in a pre-trial diversion program of the Orange County state attorney. Later, after the statute of limitations had run and the defendant had violated provisions of the diversion program, the State filed criminal charges. The defendant moved to dismiss the charges on the ground that the statute of limitations had run.
At the hearing on that motion the State presented the defendant’s written waiver. The court took testimony and found that the defendant knowingly, intelligently, and voluntarily executed the waiver, upheld the waiver, and denied the defendant’s motion which asserted the statute of limitations. Reserving the issue for appeal the defendant pled nolo contendere.
On appeal the defendant claims that the statute of limitations is jurisdictional and cannot be waived and that, if waivable, the statute of limitations is a substantive right which cannot effectively be waived except with the advice and assistance of counsel, citing Tucker v. State, 459 So. 2d 306 (Fla.1984). In Florida, statutes of limitation on crimes do not limit the jurisdiction of courts to try criminal charges. In the context of the trial of criminal charges concerning which the statute of limitations had run before the charges were filed, Tucker holds that a waiver of the accrued statute of limitations defense must be made by the defendant personally and not merely through his attorney.
Accordingly, Tucker is not applicable to the situation here where the waiver was made, prospectively, by the accused before the statute of limitations had run and before criminal charges were filed and in order to induce the State to favorably consider the accused for a diversion program offered as an alternative to filing of criminal charges. Participation in a diversion program before criminal charges are filed is not a critical step in the prosecution of a criminal case at which an accused is entitled to be provided with counsel by either the federal or state constitutions.
AFFIRMED.
UPCHURCH, C.J., and ORFINGER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Earvin Smith v. State, 211 So. 3d 176 (Fla. 3d DCA 2016)…al impediment, it is one which can be waived); Farrar v. State, 42 So. 3d 265, 265 (Fla. 5th DCA 2010) (observing that “[sjtatutes of limitations on crimes are not jurisdictional, and may be waived”); Morris, 909 So. 2d at 431 (same); Lowe v. State, 501 So. 2d 79 (Fla. 5th DCA 1987) (noting that “[ijn Florida, statutes of limitations on crimes do not limit the jurisdiction of courts to try criminal charges.”) If the statute of limitations was to be viewed as depriving the trial court of subject-matter jurisd…1 / 2
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Morris v. State, 909 So. 2d 428 (Fla. 5th DCA 2005)…crimes are not jurisdictional and the defendant may waive the statute of limitations defense. Doyle v. State, 783 So. 2d 295 (Fla. 1st DCA), rev. denied, 796 So. 2d 536 (Fla.2001); Mercer v. State, 654 So. 2d 1221 (Fla. 5th DCA 1995); Lowe v. State, 501 So. 2d 79 (Fla. 5th DCA 1987). Here, Morris successfully moved to dismiss the aggravated battery and false imprisonment charges on statute of limitations grounds. However, Morris did not move to dismiss the burglary charge. Thus this issue has not been prese…
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Cartagena v. State, 125 So. 3d 919 (Fla. 4th DCA 2013)…d offenses and having jury instructed on lesser-included offenses); State v. Robbins, 780 So. 2d 89, 91 (Fla. 2d DCA 2000) (citing Tucker and holding that, by entering no contest plea, defendant waived statute of limitations defense); Lowe v. State, 501 So. 2d 79, 80 (Fla. 5th DCA 1987) (recognizing statute of limitations defense may be waived by defendant). The majority recognizes this, but follows Rembert v. State, 476 So. 2d 721 (Fla. 1st DCA 1985), in concluding that it is somehow contrary to the public…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Melvee Tucker v. State, 459 So. 2d 306 (Fla. 1984)