EUGENIO FONDON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Eugenio Fondon appeals his convictions for first-degree murder, armed robbery, armed burglary, and attempted kidnapping. The appellate court affirms the convictions but remands for correction of the first-degree murder sentence to reflect the proper parole eligibility requirement, and allows Fondon to pursue a statute of limitations challenge at the trial court level.
The statute of limitations issue was not properly raised before the trial court and therefore relief on that ground requires an evidentiary hearing at the trial court level. The first-degree murder sentence must be corrected to reflect life imprisonment without the possibility of parole for twenty-five calendar years, rather than including a three-year mandatory minimum period.
[1] A statute of limitations defense, if not raised in the trial court, may only be addressed through post-conviction relief proceedings.
[2] A defendant's failure to raise a statute of limitations issue in the trial court precludes appellate review of that issue.
Previewing 2 of 4 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“as to the Statute of Limitations issue, and based upon the state of the record in this case, relief based upon this point is only available to the appellant, if at all, after an evidentiary hearing is held at the trial court level”
Establishes that issues not raised before the trial court must be addressed through post-conviction proceedings at the trial court level rather than on direct appeal
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Join FLexlaw to unlock all legal intelligenceEugenio Fondon was convicted of first-degree murder, armed robbery, armed burglary, and attempted kidnapping. The trial court imposed a life sentence …
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PER CURIAM.
The appellant, Eugenio Fondon, appeals his convictions for first-degree murder, armed robbery, armed burglary and attempted kidnapping.
On appeal, the appellant raises, for the first time, the issue regarding whether the appellant’s prosecution, and subsequent convictions and sentences, for the crimes of armed robbery, armed burglary and attempted kidnapping, are barred by the applicable Statute of Limitations. In support of that position, the appellant cites Maguire v. State, 453 So. 2d 438 (Fla. 2d DCA 1984), which, in turn, bases its opinion upon the case of Mead v. State, 101 So. 2d 373 (Fla.1958). We find that the appellant’s reliance on this line of authority is misplaced. Specifically, the facts giving rise to the Supreme Court’s opinion in Mead are quite distinguishable from the facts in the instant case. In Mead, “[t]he appellant did raise the point in his motion for a new trial ...,” Mead at 375, filed in the trial court, unlike the instant case where this issue has never been presented, in any context, to the trial court. See Sochor v. State of Florida, 580 So. 2d 595 (Fla.1991). Therefore, as to the Statute of Limitations issue, and based upon the state of the record in this case, relief based upon this point is only available to the appellant, if at all, after an evidentiary hearing is held at the trial court level. Accordingly, our affirmance on this point is without prejudice to the appellant filing an appropriate motion, at the trial court level, seeking post-conviction relief.
Having resolved the foregoing, we note that, in imposing the life sentence in connection with the first degree murder charge, the trial court incorrectly included a requirement that the appellant serve a three-year mandatory minimum period of time before being eligible for parole. Upon remand, the trial court is directed to correct the sentence to reflect that the proper sentence is life imprisonment without the possibility of parole for twenty-five calendar years. In all other regards, the judgment and sentence entered in connection with the first-degree murder count are affirmed.
Therefore, except as to the correction to the first-degree murder sentence, the judgments and sentences of the trial court are affirmed.
Affirmed, but remanded with directions.
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Earvin Smith v. State, 211 So. 3d 176 (Fla. 3d DCA 2016)…e holding in Key—that a defendant may assert for the first time on appeal that the crime with which the defendant was charged and convicted is barred by the statute of limitations—conflicts with two prior decisions of this court. In Fondon v. State, 581 So. 2d 188, 189 (Fla. 3d DCA 1991), we held that the defendant, convicted of armed robbery, armed burglary, and attempted kidnapping, as charged in the information, could not raise on appeal that the charges were barred by the statute of limitations where “thi…1 / 2
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Antwyne Harper v. State, 43 So. 3d 174 (Fla. 3d DCA 2010)…ed. The next question is whether we can consider the statute of limitations issue in this appeal. As already stated, the defense did not raise the issue of the statute of limitations when the case was pending in the trial court. In Fondon v. State, 581 So. 2d 188 (Fla. 3d DCA 1991), this court held that a defendant must raise a statute of limitations issue in the trial court before it can be raised as an issue on appeal. Id. at 189. We held that such an issue is appropriately raised by motion for post-convic…
Authorities Cited
- Mead v. State, 101 So. 2d 373 (Fla. 1958)
- Sochor v. State, 580 So. 2d 595 (Fla. 1991)
- Maguire v. State, 453 So. 2d 438 (Fla. 2d DCA 1984)