MYRON FLEMING, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Myron Fleming appealed his conviction for escape from Florida State Prison, arguing the three-year statute of limitations had expired before prosecution commenced. The court agreed that the state failed to meet its burden of proving the four-year delay in executing the capias was reasonable, and reversed the conviction.
The court held the prosecution was barred by the statute of limitations because the state failed to execute the capias within a reasonable time. The state offered no evidence to explain the four-year delay or demonstrate it made a diligent search to locate Fleming, and thus failed to meet its burden of proving the delay was reasonable.
[1] A prosecution is commenced when an indictment or information is filed, provided the process issued is executed without unreasonable delay.
[2] In determining whether process execution is unreasonably delayed, the defendant's absence from the state is a factor to consider.
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Join FLexlaw to unlock all legal intelligence“Once the jurisdiction of the court is challenged by the raising of the statute of limitations, the state has the burden of establishing that the offense is not barred [by the statute of limitations].”
Establishes that the state bears the burden of proof once the statute of limitations is raised as a defense.
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Join FLexlaw to unlock all legal intelligenceFleming escaped from Florida State Prison on December 25, 1982. An information was filed and capias issued on December 29, 1982. Fleming remained at l…
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SMITH, Chief Judge.
Appellant, Myron Fleming, seeks review of the trial court’s order denying his motion to dismiss the information charging him with escape from the Florida State Prison. He asserts the trial court erred in denying his motion to dismiss on the ground that the statute of limitations had expired prior to commencement of the prosecution for this crime. We agree and reverse.
On December 25, 1982, appellant escaped from prison. Four days later on December 29, 1982, an information was filed and a capias issued. Appellant remained free until May 23, 1986 when he was confined in the Douglas County Jail in Marietta, Georgia. He remained there until November 7, 1986 when he was returned to the Florida State Prison from which he had escaped. On November 19, 1986, appellant pro se filed a motion to dismiss the information on the ground that the three-year statute of limitations had expired. Thereafter on December 3, 1986, the capias was executed, about four years after it had been issued.
The above facts were presented at the motion hearing, at which appellant represented himself. During the entire hearing, counsel for the state was silent. The trial court denied the motion on the ground that appellant had not been within the custody of the State of Florida and had not been apprehended here.
Thereafter appellant was tried by a jury and convicted of escape. The trial court subsequently imposed a guidelines sentence of 3V2 years imprisonment to run consecutive to the sentence he was currently serving.
Once the jurisdiction of the court is challenged by the raising of the statute of limitations, the state has the burden of establishing that the offense is not barred by the statute of limitations. State v. King, 282 So. 2d 162 (Fla.1973); Akers v. State, 370 So. 2d 81 (Fla. 1st DCA 1979).
A prosecution for escape, which is a second degree felony, must be commenced within three years after it is committed. Section 775.15(2)(b), Florida Statutes (1981). To determine when a prosecution commences, we look to section 775.15(5) which states in pertinent part:
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.
In the present case, the state offered no evidence to explain the four-year delay in executing the capias, and no evidence that it had made a diligent search (indeed, any search) to locate the defendant. The record reveals only that appellant was apprehended in Marietta, Georgia, and that he was in Georgia for some unspecified period of time. However, these facts are insufficient to prove the reasonableness of the four-year delay. While not on point, State v. Fields, 505 So. 2d 1336 (Fla.1987), is instructive on the issue of the timeliness of execution of the arrest warrant. In Fields, the information was discharged because the state made no attempt to execute the capias until years later, even though it knew where to find the defendant. Here, of course the record contains no explanation for the state’s failure to serve appellant until four years later, although clearly, the state had the burden of offering an explanation for the delay before the trial court.
Accordingly, appellant’s judgment and sentence for escape are REVERSED.
BOOTH and NIMMONS, JJ., concur.
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Citator
Cited By (16 total)
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Neal v. State, 697 So. 2d 903 (Fla. 2d DCA 1997)…arge on statute of limitations grounds failed in the trial court, but on appeal the First District concluded that the State had not proved that its delay in serving the warrant was reasonable; Fleming’s conviction was reversed. See Fleming v. State, 524 So. 2d 1146 (Fla. 1st DCA 1988).4 See also Gilmore v. State, 602 So. 2d 578 (Fla. 1st DCA 1992) (holding that the trial court properly denied a prison escapee’s motion to dismiss based on the statute of limitations after the court heard evidence of diligent eff…1 / 3
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State v. Carey D. Miller, 581 So. 2d 641 (Fla. 2d DCA 1991)…e, the delay was not unreasonable. We disagree. Once the jurisdiction of the court is challenged by the raising of the statute of limitations, the state has the burden of establishing that the offense is not barred by the statute. Fleming v. State, 524 So. 2d 1146 (Fla. 1st DCA 1988) (prosecution for escape was barred by statute of limitations where state offered no evidence to explain four year delay in executing capias, or that state made any search for the defendant, and only evidence offered was that defe…
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Colvin v. State, 541 So. 2d 724 (Fla. 2d DCA 1989)…risdiction of the court was challenged by the raising of the statute of limitations, it became the state’s burden to establish that the offense was not barred by the statute of limitations. State v. King, 282 So. 2d 162 (Fla.1973); Fleming v. State, 524 So. 2d 1146 (Fla. 1st DCA 1988). In this case, the state failed to carry its burden. A prosecution for robbery with a firearm must begin within four years after the date of the alleged offense, section 775.15(2)(a), Florida Statutes (1979), and prosecution for…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. King, 282 So. 2d 162 (Fla. 1973)
- State v. Fields, 505 So. 2d 1336 (Fla. 1987)
- Akers v. State, 370 So. 2d 81 (Fla. 1st DCA 1979)