JAMES T. SALTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Salter was charged with grand theft but not arrested until 1993, over four years after the five-year statute of limitations expired. The trial court denied his motion to dismiss, but this court reversed because the applicable statute of limitations had expired and the state's single attempt to serve the capias did not constitute diligent efforts to toll the statute.
The five-year statute of limitations for the grand theft had expired on October 23, 1993. The tolling provision of section 812.035(10) did not apply because it became effective October 1, 1992, after the crime was committed in October 1988, and the 1987 version of the theft statute contained no tolling provision. The state's single attempt to serve the capias fell short of diligent search and did not justify the delay.
[1] A statute of limitations is not tolled by an amendment that becomes effective after the commission of the crime, if the original statute contained no tolling provision.
[2] A single, unsuccessful attempt to serve a capias at an out-of-state address does not constitute a diligent search sufficient to justify a delay in prosecution beyond the…
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Join FLexlaw to unlock all legal intelligence“the five year statute of limitations for this grand theft, which was committed on October 23, 1988, expired on October 23, 1993”
Establishes that the statute of limitations had run before the December 1993 arrest
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Join FLexlaw to unlock all legal intelligenceAppellant was charged by information on March 2, 1989, with grand theft committed on October 23, 1988. A capias was issued the same day but appellant …
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QUINCE, Judge.
Appellant, James T. Salter, appeals the trial court’s denial of his motion to dismiss. We reverse because the applicable statute of limitations had expired.
Appellant was charged by information on March 2, 1989, with grand theft which oc curred on October 23, 1988. A capias was issued on March 2, 1989, but appellant was not arrested until December 20, 1993. A motion to dismiss was filed alleging the running of the statute of limitations. At the hearing on the motion, the state indicated an attempt was made to serve the capias on appellant at the out-of-state address on the rental ear agreement. The grand theft charge stemmed from appellant’s failure to return a rental car. The trial court denied the motion to dismiss, and appellant entered a plea of nolo contendere reserving the right to appeal the denial of the motion to dismiss.
Appellant argues the five year statute of limitations for this grand theft, which was committed on October 23, 1988, expired on October 23, 1993. He further argues the tolling provision of section 812.035(10), Florida Statutes (1993), is not applicable to this case since the crime occurred prior to the effective date of the amendment to the statute. We agree. The out-of-state tolling provision of section 812.035(10) became effective on October 1, 1992. This crime was committed in October 1988; thus, the 1987 version of the theft statute is applicable to this case. Perez v. State, 545 So. 2d 1357 (Fla.1989). There was no tolling provision in the 1987 version.
The state argues, however, that a diligent attempt was made to serve appellant within the limitations period. The state issued the capias on March 2, 1989, and attempted to serve it on appellant at his out-of-state address listed on the rental ear agreement. No further action was taken. This one attempt to serve falls short of a diligent search which might justify the delay. Colvin v. State, 541 So. 2d 724 (Fla. 2d DCA 1989); Walker v. State, 543 So. 2d 353 (Fla. 5th DCA 1989).
We reverse appellant’s conviction and remand to the trial court with instructions to discharge appellant.
CAMPBELL, A.C.J., and THREADGILL, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Arnold v. State, 689 So. 2d 1234 (Fla. 2d DCA 1997)…ute of limitations contained in section 812.035(10). The state argues that diligent effort was made to serve appellant. The records of the P.C.S.O. clearly demonstrate otherwise. Brown v. State, 674 So. 2d 738 (Fla. 2d DCA 1995) and Salter v. State, 651 So. 2d 1228 (Fla. 2d DCA 1995) are directly on point. We therefore reverse appellant’s convictions and remand with directions to discharge appellant. PATTERSON and QUINCE, JJ., concur.…
Authorities Cited
- Perez v. State, 545 So. 2d 1357 (Fla. 1989)
- Colvin v. State, 541 So. 2d 724 (Fla. 2d DCA 1989)
- Cherlyn Walker v. State, 543 So. 2d 353 (Fla. 5th DCA 1989)