GEORGE STUDNICKA, PETITIONER,
v.
HONORABLE JAMES T. CARLISLE, CIRCUIT COURT JUDGE, RESPONDENT
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Petitioner, a criminal defendant, seeks a writ of prohibition challenging a trial court's denial of his motion to dismiss two counts of an indictment on statute of limitations grounds. The appellate court granted the petition, finding the trial court erred by failing to hold an evidentiary hearing to determine whether the prosecution periods had been tolled, thereby calling into question the trial court's jurisdiction.
The trial court erred in denying the motion to dismiss because the state failed to demonstrate that the statutory prosecution periods were tolled, calling into question the court's jurisdiction. The court should have held an evidentiary hearing to determine whether the limitation period was tolled, and the state had the opportunity to amend the indictment to allege such tolling facts.
[1] A trial court lacks jurisdiction when the state fails to meet its burden of showing that statutory periods for prosecution were tolled, rendering the indictment facially…
[2] The substantive content of an indictment can only be corrected by the grand jury, not by amendment.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the state failed to meet its burden of showing that the statutory periods for prosecuting Counts II and III, which facially appear to have run, were tolled. This calls into question the jurisdiction of the trial court.”
Establishes that the state bears the burden of proving tolling when prosecution periods facially appear expired, and failure to do so raises a jurisdictional question.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe petitioner was indicted on four counts. He moved to dismiss Counts II and III, arguing that the statutory periods for prosecution appeared to have…
The full statement of facts, procedural history, and disposition for this case are member content.
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[*393] GUNTHER, Judge.
The petitioner, defendant below, seeks a writ of prohibition as a result of the trial court’s denial of his motion to dismiss Counts II and III of a four-count indictment. We grant the petition.
We agree with the petitioner’s assertion that the trial court erred in denying his motion to dismiss. Below, the state failed to meet its burden of showing that the statutory periods for prosecuting Counts II and III, which facially appear to have run, were tolled. This calls into question the jurisdiction of the trial court. See Akers v. State, 370 So. 2d 81 (Fla. 1st DCA 1979).
So far as the appendix that is before us shows, no evidentiary hearing was held to determine whether the limitation period was in fact tolled, making the indictment timely, nor has the state sought to amend the indictment. We note that the state may amend an information to allege such facts, Akers, 370 So. 2d at 83, but the substantive content of an indictment can be corrected only by the grand jury. See Picker on v. State, 94 Fla. 268, 113 So. 707 (1927), modified in part, Tingley v. State, 549 So. 2d 649 (Fla.1989); Perez v. State, 371 So. 2d 714 (Fla. 2d DCA 1979); Russell v. State, 349 So. 2d 1224 (Fla. 2d DCA 1977). In our view, this principle is indirectly reinforced in the recent opinion in Tingley, wherein it is stated that time is not ordinarily a substantive part of an indictment or information, and that there may be a variance between the alleged time of the offense and the time proved at trial as long as the crime did occur prior to the return date of the indictment, “the crime was committed within the applicable statute of limitations,” and the defendant has not been surprised or hampered in his defense. Tingley, 549 So. 2d at 650.
The objectionable aspect of the indictment before us is not incurable. See section 775.15(5) Fla.Stat. (1983). We do not, however, have that issue before us.
Petitioner raises other issues; however we choose not to treat them in this proceeding.
Accordingly, we grant the petitions for writ of prohibition and quash the order in question.
PETITION GRANTED.
STONE and GARRETT, JJ., concur.
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Manzini v. State, 115 So. 3d 1015 (Fla. 4th DCA 2013)…by the criminal defendant client he was representing had been fully withdrawn from his law firm trust account by February 28, 2006, rendering the March 3, 2011 filing of the information in this case presumptively untimely. See Studnicka v. Carlisle, 553 So. 2d 392, 393 (Fla. 4th DCA 1989). While the motion to dismiss was under advisement, the State filed an amended information on June 27, 2012 which re-alleged the date of the offense as April 28, 2006. Based on this amendment to the original information, the…
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Ramona v. MacKINNON, 891 So. 2d 1175 (Fla. 1st DCA 2005)…)(b), Fla. Stat. The trial court denied the motion and Mac-Kinnon petitions this court for a writ of prohibition. We have jurisdiction in accordance with State ex rel. Ridenour v. Bryson, 380 So. 2d 468 (Fla. 2d DCA 1980), and Studnicka v. Carlisle, 553 So. 2d 392 (Fla. [*1176] 4th DCA 1989). Further, we conclude that the forgery and uttering charges are barred by the three-year statute of limitations and, accordingly, grant the petition. Although MacKinnon was arrested on the forgery and. uttering charges,…
Authorities Cited
- Ralph Pickeron alias Ralph Pickern v. State, 94 Fla. 268 (Fla. 1927)
- Tingley v. State, 549 So. 2d 649 (Fla. 1989)
- Perez v. State, 371 So. 2d 714 (Fla. 2d DCA 1979)
- Russell v. State, 349 So. 2d 1224 (Fla. 2d DCA 1977)
- Akers v. State, 370 So. 2d 81 (Fla. 1st DCA 1979)