DORIS J. GUNN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the prosecution was not commenced within the statute of limitations because the capias was served after an unreasonable delay.
The state filed an information charging fraud two years and nine months after the alleged offense, which was within the three-year statute of limitati…
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BEVERLY, V.Q., Associate Judge.
Doris Gunn appeals the trial court’s order denying her motion to dismiss the state’s information charging her with obtaining unemployment compensation by fraud.
At issue is whether prosecution was commenced before the statute of limitations had run.
The crime allegedly occurred between February and April, 1981. The information was filed two years and nine months after the offense charged, but within the three-year statute of limitations provided by sec tion 775.15(2)(b), Florida Statutes (1985) for prosecution of third degree felonies. The capias was served in May 1986, five years after commission of the offense, and two years and three months after the information was filed.
The appellant resided in the town of Apopka, Florida throughout the periods involved here and had the same address for several years. There was no evidence in the record that the State had made any efforts to locate or serve Gunn prior to the actual date of service.
Section 775.15(5), Florida Statutes (1985) provides:
“A prosecution 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 Florida Supreme Court recently considered this section in State v. Fields, 505 So. 2d 1336 (Fla.1987) and held that “the word ‘executed’ in section 775.15(5) can only mean service on the defendant.”
From the record in this case, we conclude that the capias was executed after an unreasonable delay, and after the statute of limitations had run. The trial court should have granted Gunn’s motion to dismiss.
We therefore reverse the appealed order and remand for further proceedings consistent with this opinion.
REVERSED and REMANDED.
DAUKSCH and COWART, JJ., concur.
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Colvin v. State, 541 So. 2d 724 (Fla. 2d DCA 1989)…t. The court upheld the appellate court’s ruling that the delay in service was unreasonable because the state knew the defendant’s address and did not serve him until three years and eight months after filing the information. See also Gunn v. State, 519 So. 2d 1128 (Fla. 5th DCA 1988). In this case, the capias was executed more than six years after the offenses were committed. The state offered no credible reason for the delay. Accordingly, we reverse the order denying Colvin’s motions and remand with instruc…
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Cherlyn Walker v. State, 543 So. 2d 353 (Fla. 5th DCA 1989)…attempt of service at the defendant’s mother’s residence does not constitute a diligent search and therefore the ten year delay in the execution of the capias is unreasonable. See Sherley v. State, 538 So. 2d 148 (Fla. 5th DCA 1989); Gunn v. State, 519 So. 2d 1128 (Fla. 5th DCA 1988). See also Colvin v. State, 541 So. 2d 724 (Fla. 2d DCA 1989); Fleming v. State, 524 So. 2d 1146 (Fla. 1st DCA 1988). We note further that the tolling period of section 775.15(6), which extends the three year limitation period un…
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Sherley v. State, 538 So. 2d 148 (Fla. 5th DCA 1989)…ble by more than 3 years. § 775.15(5) and (6), Fla.Stat. (1987). In State v. Fields, 505 So. 2d 1336 (Fla.1987), the Florida Supreme Court construed the word “executed” in subsection 5 to mean “service upon the defendant.” See also, Gunn v. State, 519 So. 2d 1128 (Fla. 5th DCA 1988). Thus, in the instant case, the state did not commence prosecution in 1979 because the information was never “executed,” i.e., served on Sherley. Nor do the exculpatory provisions of subsection (5) provide relief to the state be…
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- State v. Fields, 505 So. 2d 1336 (Fla. 1987)