ROBYN WELLS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Wells was charged with grand theft in 1986, but the capias was not executed until August 1989—nearly three years and seven months later. The court reversed the trial court's denial of her motion to dismiss, holding that the eighteen-month delay between filing the information and executing the capias violated the statute of limitations because the state failed to demonstrate reasonable diligence.
The court held that the prosecution was barred by the statute of limitations. The state failed to demonstrate that the delay in executing the capias was reasonable, and an eighteen-month unexplained delay is unreasonable and cannot relate the 'commencement' of prosecution back to the filing of the information.
[1] A prosecution is commenced when an indictment or information is filed, provided the process issued on such indictment or information is executed without unreasonable dela…
[2] The state bears the burden of proving that a prosecution is not barred by the statute of limitations once the defense raises the issue.
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Join FLexlaw to unlock all legal intelligence“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.”
Establishes the statutory definition of when prosecution 'commences' for statute of limitations purposes, requiring both filing and execution without unreasonable delay.
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Join FLexlaw to unlock all legal intelligenceCharges were filed against Wells on June 13, 1986 for grand theft allegedly committed between September 1985 and January 1986. A capias was initially …
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HARRIS, Judge.
On June 13, 1986 charges were filed against Robyn Wells alleging that she committed grand theft during the period September, 1985 through January, 1986. A capias based on that information was improperly served on a Robin Wells who had no connection with the alleged theft. The initial action was nol prossed and a new information was filed in February, 1988. The capias, however, was not executed until August, 1989 — some .three years and seven months after the alleged offense.
Wells moved to dismiss the charge because the applicable statute of limitation required that prosecution “commence” within three years of the date the offense was committed. The trial court denied her motion. We reverse.
Section 775.15(5), Florida Statutes (1985) defines the term “commence” as follows:
(5) A prosecution is commenced when either an indictment or information is filed provided the capias, summons or other process issued on such indictment ¡pr 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. (Emphasis added.)
Once the jurisdiction of the court is challenged by raising the statute of limitations, the state has the burden of establishing that the prosecution is not barred by such limitation. State v. King, 282 So. 2d 162 (Fla.1973); Walker v. State, 543 So. 2d 353 (Fla. 5th DCA 1989).
The state argues that the delay in executing the capias in this case was not unreasonable; however, the issue in pre-ar-rest delay is not merely reasonableness as it relates to the amount of time involved, but also whether the state was diligent in its efforts to execute the capias in order to bring the defendant before the court within the statutory limit. See Walker v. State, supra. Although the state asserts that there is a credible explanation for the delay, no testimony concerning the reason for the delay or concerning the state’s efforts to execute the capias was presented below. An eighteen month delay without explanation is unreasonable and will not justify relating the “commencement” of the prosecution back to the filing of the information.
The state’s attempt to distinguish this case from the cases cited by appellant 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. REVERSED with directions to DISMISS the action.
COBB and GRIFFIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Neal v. State, 697 So. 2d 903 (Fla. 2d DCA 1997)…neither does a defendant’s failure to attend a court hearing standing by itself. The State s failure to present any evidence to explain or excuse its delay in serving the arrest warrant in this case is fatal to the prosecution. See Wells v. State, 571 So. 2d 563 (Fla. 5th DCA 1990) (receded from on different grounds in State v. Hampton, 692 So. 2d 278 (Fla. 5th DCA 1997)); Fleming, 524 So. 2d 1146. Therefore, we grant the petition, issue the writ, and order the trial court to discharge Billie Jean Neal. FU…1 / 2
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State v. Burt Picklesimer, 606 So. 2d 473 (Fla. 4th DCA 1992)…vide similar justifications for the state’s failure to serve the defendant, the two sections nonetheless are independent. Section 775.15(5) allows the state to “relate back” the date of service to the date the information was filed. Wells v. State, 571 So. 2d 563 (Fla. 5th DCA1990) (“An eighteen-month delay without explanation is unreasonable and will not justify relating the ‘commencement’ of the prosecution back to the filing of the information.”); Walker v. State, 543 So. 2d 353 (Fla. 5th DCA1989) (“Altho…
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Bragenzer v. State, 582 So. 2d 142 (Fla. 5th DCA 1991)…s in pre-arrest delay are whether the capias was executed without unreasonable delay and whether the state was diligent in its efforts to execute the capias in order to bring the defendant before the court within the statutory limit. Wells v. State, 571 So. 2d 563 (Fla. 5th DCA 1990); Walker v. State, 543 So. 2d 353 (Fla. 5th DCA 1989). At the hearing on defendant’s motion to dismiss the state established that a capias was issued for defendant on January 12, 1984. Orange County deputy sheriff Norman Boot tes…
Previewing 3 of 8 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)
- Colvin v. State, 541 So. 2d 724 (Fla. 2d DCA 1989)
- Cherlyn Walker v. State, 543 So. 2d 353 (Fla. 5th DCA 1989)
- Sherley v. State, 538 So. 2d 148 (Fla. 5th DCA 1989)