JERRY SHERLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the prosecution was commenced outside the statute of limitations because the capias was not executed without unreasonable delay.
[1] Prosecution for aggravated battery must be commenced within three years after the commission of the offense.
[2] A prosecution is commenced when an indictment or information is filed and the process issued on it is executed without unreasonable delay.
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Join FLexlaw to unlock all legal intelligenceThe state filed an information and capias for aggravated battery in 1979, but the defendant was not served until 1987 after being apprehended in anoth…
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SHARP, Chief Judge.
Sherley appeals from the trial court's order denying his motion to dismiss the state’s information charging him with aggravated battery. He claims that the three year statute of limitations under section 775.15(2)(b), Florida Statutes (1987) had expired prior to the state’s commencement of prosecution. We agree and reverse.
On August 31, 1979, Sherley shot Priscilla Shepherd in the stomach with a .22 caliber pistol after she interfered in a fight between Sherley and his wife. On October 17, 1979, the state filed an information and the trial court issued a capias for his arrest. On December 20, 1979, the sheriff’s department attempted to serve the capias upon Sherley at his Florida residence, but was unable to do so. The officers’ remarks on the attempted service indicate Sherley had moved without leaving a forwarding address. This was the only attempt at service of the capias.
In 1987, Sherley was stopped for driving without a license in Illinois. The aggravated battery charge was discovered and Sherley was extradited to Florida. After the trial court’s denial of his motion to dismiss, he pled nolo contendere to the charge, expressly reserving his right to appeal the denial of his motion. The trial court accepted his plea and placed Sherley on probation.
Section 775.15(2)(b) provides that prosecution for the second degree felony of aggravated battery must be commenced within three years after it was committed. Subsections (5) and (6) discuss when a prosecution is commenced and when the statute of limitations is tolled. They state:
(5) 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. If, however, an indictment or information has been filed within the time period prescribed in this section and the indictment or information is dismissed or set aside because of a defect in its content or its form after the time period has elapsed, the time for commencing prosecution shall be extended three months from the time the indictment or information is dismissed or set aside.
(6) The period of limitation does not run during any time when the defendant is continuously absent from the state or has no reasonably ascertainable place of abode or work within the state, but in no case shall this provision extend the period of limitation otherwise applicable 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 because there was no evidence adduced at trial that a diligent attempt was made to serve Sherley or ascertain his whereabouts. The single attempt of service at his residence did not constitute a diligent search and therefore did not give rise to a reasonable delay. Cf. Fleming v. State, 524 So. 2d 1146 (Fla. 1st DCA 1988) (prosecution for escape commenced more than three years after it was committed, was barred by statute of limitations, absent evidence to explain state’s four-year delay in executing capias or evidence that it had made a diligent search to locate defendant).
Furthermore, the tolling period of section 775.15(6), caused by Sherley’s absence from the state, was insufficient to make his prosecution timely. Subsection (6) only extends the three year limitations period under section 775.13(2)(b) up to a three year maximum for a total of six years. The record establishes that Sherley was apprehended (and presumably served with the capias) eight years after commission of the felony. Therefore, we conclude that the trial court erred in not granting Sherley’s motion to dismiss because the capias was served after the statute of limitations had run.
The order denying the motion to dismiss is reversed and the case is remanded for further proceedings consistent with this opinion.
REVERSED and REMANDED.
DAUKSCH and COBB, JJ., concur.
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Cherlyn Walker v. State, 543 So. 2d 353 (Fla. 5th DCA 1989)…capias during such interim. In our view, the single 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…
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State v. Burt Picklesimer, 606 So. 2d 473 (Fla. 4th DCA 1992)…total of seven years. The State argues that applying the language in subsection (6) is mixing apples and oranges in concluding that seven years is the maximum allowable limitation under the statute. Based upon a careful reading of Sherley v. State, 538 So. 2d 148 (Fla. 5th DCA1989), Walker v. State, 543 So. 2d 353 (Fla. 5th DCA1989) and Constantine v. State, 566 So. 2d 321 (Fla. 2nd DCA1990), the Court disagrees. The state appealed to the Fourth DCA and the Florida Supreme Court has assigned a panel of judg…
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Wells v. State, 571 So. 2d 563 (Fla. 5th DCA 1990)…ppellant on the ground that each cited case involves a longer delay than eighteen months must be rejected. The statute of limitations is three years, and it matters not whether the delay is ten years as in Walker, eight years as in Sherley v. State, 538 So. 2d 148 (Fla. 5th DCA 1989), six years as in Colvin v. State, 541 So. 2d 724 (Fla. 2d DCA 1989) or eighteen months as in this case. The state must show the reasonableness of any such delay. That was not done. [*565] REVERSED with directions to DISMISS the a…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Fields, 505 So. 2d 1336 (Fla. 1987)
- Myron Fleming v. State, 524 So. 2d 1146 (Fla. 1st DCA 1988)
- Gunn v. State, 519 So. 2d 1128 (Fla. 5th DCA 1988)