STATE OF FLORIDA, APPELLANT,
v.
CAREY D. MILLER, APPELLEE
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Florida appealed a trial court's dismissal of drug charges against Carey Miller based on the statute of limitations. The court affirmed, holding that although the state filed an information within three years of the alleged crimes, a prosecution is not commenced until a capias is issued and executed without unreasonable delay, and the state's four-year delay in executing the capias constituted an unreasonable delay that was not excused by the defendant's absence from the state.
The court held that a prosecution is not commenced by merely filing an information; it requires that a capias be issued and executed without unreasonable delay. The state bears the burden of establishing that an offense is not barred by the statute of limitations. A defendant's absence from the state does not toll the statute of limitations when the absence is not the defendant's fault and does not result in preventing prosecution. Here, the four-year delay in executing the capias was unreasonable, and the defendant's temporary absence in Indiana did not excuse it.
[1] A prosecution is not commenced by the mere filing of an information; a capias must be issued and executed without unreasonable delay.
[2] The state bears the burden of establishing that an offense is not barred by the statute of limitations once that defense is raised.
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Join FLexlaw to unlock all legal intelligence“A prosecution is not commenced by filing an information unless a capias is issued and executed without unreasonable delay.”
Establishes the core legal principle that determines when prosecution is properly commenced under Florida law, distinguishing filing an information from actual commencement of prosecution.
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Join FLexlaw to unlock all legal intelligenceOn January 3, 1985, Florida filed an information charging Miller with sale and possession of diazepam and marijuana, crimes allegedly committed on Mar…
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SCHOONOVER, Chief Judge.
The State of Florida has appealed a trial court order dismissing an information filed against the appellee, Carey D. Miller, who alleged that the statute of limitations prohibited the state from proceeding against him. We affirm.
On January 3, 1985, the state filed a four count information charging the appellee with sale of diazepam, possession of diazepam, sale of marijuana, and possession of marijuana. The crimes were allegedly committed on March 15,1984. A capias for the appellee’s arrest was issued on January 25, 1985, but the appellee was not arrested until September 21, 1989.
The appellee filed a motion to dismiss the charges against him on the basis of section 775.15(2)(b), Florida Statutes (1983), which requires the state to commence a prosecution for a third degree felony within three years of the offense. At the conclusion of the hearing on the appellee’s motion, the trial court granted the motion, and the state filed a timely notice of appeal from the order discharging the appellee.
Although the state filed an information against the appellee within three years of the alleged offenses, the mere filing of an information does not commence a prosecution. A prosecution is not commenced by filing an information unless a capias is issued and executed without unreasonable delay. § 775.15(5). In this case, the trial court properly determined that there was an unreasonable delay in executing the capias.
In determining what is reasonable, the inability to locate a defendant after diligent search or the defendant’s absence from the state shall be considered. § 775.15(5). At the hearing on the appel-lee’s motion to dismiss, the state did not seriously contend that it had made a diligent search for the appellee, and the evidence would not have supported such a finding. The state did, however, contend that it established that the appellee was out of the state of Florida for at least a portion of the time, and therefore, 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 defendant was in another state for an unspecified period of time). The state, in this case, presented evidence that the appellee was in Indiana for a few months in
1986. Assuming that this evidence was sufficient to shift the burden to the appel-lee, as it would if the speedy trial rule was at issue, State v. Antonietti, 558 So. 2d 192 (Fla. 4th DCA 1990), the appellee met his burden. At the time the appellee left the state of Florida, there were no charges pending against him and no reason requiring him to stay in Florida. As soon as he was notified of the charges by Indiana officials, he waived extradition and agreed to return to Florida. Florida refused to go to Indiana and pick him up, and therefore, he was released by Indiana officials. Neither the appellee’s absence from the state, nor his conduct prevented the state from commencing the prosecution within three years of the offenses.
Absence from the state can certainly cause the state problems in commencing a prosecution, affording a speedy trial, or affording due process to litigants, see Fleming, Antonietti, Friday v. Newman, 183 So. 2d 25 (Fla. 2d DCA 1966), and when the absence is the fault of the defendant, the relative time periods are tolled. When, however, the absence from the state is not the fault of the defendant and does not result in preventing prosecution, the time periods of statutes of limitations are not tolled. Walker v. State, 281 So. 2d 41 (Fla. 2d DCA 1973), cert. denied, 289 So. 2d 739 (Fla.1974). See also Mishan v. Crews, 363 So. 2d 1178 (Fla. 1st DCA 1978); Fleming; Friday.
The trial court, accordingly, properly dismissed the charges against the appellee, and we affirm.
Affirmed.
SCHEB and DANAHY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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Brown v. State, 674 So. 2d 738 (Fla. 2d DCA 1995)…s executed without unreasonable delay.” § 775.15(5), Fla.Stat. (1993). Thus, the filing of an information and the issuance of a capias do not, alone, commence prosecution. The capias must also be executed without unreasonable delay. State v. Miller, 581 So. 2d 641 (Fla. 2d DCA), review dismissed, 584 So. 2d 999 (Fla.1991). The word “executed” means completion of service on the defendant. State v. Fields, 505 So. 2d 1336 (Fla.1987). Section 775.15(5) further provides that “[i]n determining what is reasonable,…1 / 2
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Neal v. State, 697 So. 2d 903 (Fla. 2d DCA 1997)…(5), Fla. Stat. (1989). An unexcused delay in serving the appropriate process until after the statute of limitations has run bars prosecution for the offenses charged. See generally Brown v. State, 674 So. 2d 738 (Fla. 2d DCA 1995); State v. Miller, 581 So. 2d 641 (Fla. 2d DCA 1991). Under section 775.15(6), Florida Statutes (1989), “[t]he 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…
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Netherly v. State, 804 So. 2d 433 (Fla. 2d DCA 2001)…the State is unable to demonstrate that prosecution was delayed due to the defendant’s absence from the state. See, e.g., Sutton v. State, 784 So. 2d 1239, 1242 (Fla. 2d DCA 2001); Brown v. State, 674 So. 2d 738 (Fla. 2d DCA 1995); State v. Miller, 581 So. 2d 641 (Fla. 2d DCA 1991). Mr. Netherly maintains the limitations period should not have been tolled because the State was aware that he had relocated to Tennessee. We agree. The record indicates that the Netherlys were, at all times, available to be char…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Myron Fleming v. State, 524 So. 2d 1146 (Fla. 1st DCA 1988)
- Friday v. Newman, 183 So. 2d 25 (Fla. 2d DCA 1966)
- Walker v. State, 281 So. 2d 41 (Fla. 2d DCA 1973)
- Ezra Joshua Mishan v. The Honorable John J. Crews, 363 So. 2d 1178 (Fla. 1st DCA 1978)
- Fairway Indus., Inc. v. Rollie Shuemaker and Mary L. Shuemaker, 558 So. 2d 192 (Fla. 4th DCA 1990)
- State v. Antonietti, 558 So. 2d 192 (Fla. 4th DCA 1990)
- Begley v. Corp. "R", 289 So. 2d 739 (Fla. 1974)
- In re the Est. of Thomas W. Hastings v. Etta W. Walker Hastings, 289 So. 2d 739 (Fla. 1974)