WILLIAM CURTIS MERCER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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William Mercer was convicted of capital sexual battery for acts allegedly occurring in 1972. The Florida appellate court reversed his conviction because the state failed to prove the crimes occurred during the period when the statute of limitations had not expired, and Mercer did not effectively waive the limitations defense.
The conviction is reversed because the state failed to prove that the offenses occurred during the unlimited statute of limitations period, and the benefit of the possibility that offenses occurred during the two-year limitations period must be given to the defendant. No effective waiver of the statute of limitations defense occurred.
[1] The statute of limitations in effect at the time of the alleged criminal acts controls the time in which prosecution must be initiated.
[2] When the death penalty was declared unconstitutional, the unlimited statute of limitations for capital offenses ceased to apply.
Previewing 2 of 5 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“Because the State failed to prove that the offenses occurred during the period when the unlimited statute of limitations controlled the prosecution of the offenses, the benefit of the possibility that the offenses occurred outside that period must be given to the defendant.”
Establishes that the burden is on the state to prove timing within the applicable limitations period, and defendants receive favorable interpretation when timing is ambiguous.
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Join FLexlaw to unlock all legal intelligenceMercer was charged with capital sexual battery for prohibited sexual acts allegedly occurring between January and September 1972. The crimes involved …
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PER CURIAM.
William Mercer appeals the judgment and sentence imposed following his conviction of one count of capital sexual battery under section 794.011(2), Fla.Stat. (1993). We agree with his argument on appeal that the statute of limitations barred the prosecution, and accordingly, we reverse his conviction and sentence.1
The limitations period in effect at the time of the action giving rise to the criminal charges controls the time in which prosecution must be initiated. Rubin v. State, 390 So. 2d 322 (Fla.1980). Here, the prohibited sexual acts were alleged to have occurred during the eight and one half months between January 1972 and September 16,1972. Two different limitations periods were applicable during that time frame. From January 1, 1972 to July 24, 1972, there was no time limitation for prosecuting the offense of forcible intercourse on a child less than ten as the crime was punishable by death.2 On July 24, 1972, Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), holding the death penalty unconstitutional, became effective. When the death penalty fell, so too did the unlimited statute of limitations. Reino v. State, 352 So. 2d 853 (Fla.1977), receded from on other grounds, Perez v. State, 545 So. 2d 1357 (Fla.1989). From July 24, 1972 to October 1,1972,3 the two year statute of limitations provided in subsection 932.465(2) controlled. Reino, 352 So. 2d at 861.
The problem here is that it is possible that the two charged acts were committed during the nine week period when the two year statute of limitations was in effect. Because the State failed to prove that the offenses occurred during the period when the unlimited statute of limitations controlled the prosecution of the offenses, the benefit of the possibility that the offenses occurred outside that period must be given to the defendant. See Mead v. State, 101 So. 2d 373 (Fla.1958) (statutes of limitation are to be liberally construed in favor of defendants in criminal cases). Had the State alleged the acts occurred prior to July 24, 1972, the prosecution would not have been time barred. See Perez, supra. Reversal is required because, while the statute of limitations defense is waivable,
an effective waiver may only be made after a determination on the record that the waiver was knowingly, intelligently and voluntarily made; the waiver was made for the defendant’s benefit and after consultation with counsel; and the waiver does not handicap the defense or contravene any of the public policy reasons motivating the enactment of the statute.
Tucker v. State, 459 So. 2d 306, 309 (Fla.1984). No such waiver occurred here.
REVERSED.
COBB, GOSHORN and THOMPSON, JJ., concur. . Because this issue is dispositive of Mercer's conviction, we do not address the other issues Mercer raised on appeal.
. Section 794.011, Fla.Stat. (1971) provided that "whoever ... unlawfully or carnally knows and abuses a female child under the age of ten years” was guilty of the offense of rape, a capital felony. Subsection 775.082(1), Fla.Stat. (1971) provided that a person convicted of a capital felony "shall be punished by death.” Prosecution for an offense punishable by death could be commenced at any time. § 932.465(2), Fla.Stat. (1971).
. October 1, 1972 was the effective date of section 921.141, Florida Statutes (Supp.1972), the re-enacted and revised death penalty statute which resurrected the classification of "capital crimes” and, concomitantly, the unlimited statute of limitations applicable thereto. See Ch. 72-72, § 1, at 241, Laws of Fla.; Manucy v. Wadsworth, 293 So. 2d 345 (Fla.1974).
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Goings v. State, 76 So. 3d 975 (Fla. 1st DCA 2011)…in effect when a crime is committed.” (citing State ex rel. Manucy v. Wadsworth, 293 So. 2d 345, 347 (Fla. 1974))); Torgerson v. State, 964 So. 2d 178, 179 (Fla. 4th DCA 2007); Rock v. State, 800 So. 2d 298, 299 (Fla. 3d DCA 2001); Mercer v. State, 654 So. 2d 1221, 1221 (Fla. 5th DCA 1995) (“The limitations period in effect at the time of the action giving rise to the criminal charges controls the time in which prosecution must be initiated.” (citing Rubin v. State, 390 So. 2d 322 (Fla.1980))); Heath v. State…
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Starling v. State, 799 So. 2d 425 (Fla. 5th DCA 2001)…motion is affirmed. AFFIRMED. THOMPSON, C.J., and ORFINGER, R. B., J., concur. . The limitations period in effect at the time of the state's action on the criminal charges controls the time in which prosecution must be initiated. Mercer v. State, 654 So. 2d 1221, 1221 (Fla. 5th DCA 1995) (citing Rubin v. State, 390 So. 2d 322 (Fla.1980)). . This subsection has been substantially amended since 1993 and the current version provides that if the defendant had previously been arrested on the charge, prosecution…
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Morris v. State, 909 So. 2d 428 (Fla. 5th DCA 2005)…r the charge. In Florida, statutes of limitation on crimes are not jurisdictional and the defendant may waive the statute of limitations defense. Doyle v. State, 783 So. 2d 295 (Fla. 1st DCA), rev. denied, 796 So. 2d 536 (Fla.2001); Mercer v. State, 654 So. 2d 1221 (Fla. 5th DCA 1995); Lowe v. State, 501 So. 2d 79 (Fla. 5th DCA 1987). Here, Morris successfully moved to dismiss the aggravated battery and false imprisonment charges on statute of limitations grounds. However, Morris did not move to dismiss the b…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Furman v. Georgia, 408 U.S. 238 (U.S. 1972)
- Melvee Tucker v. State, 459 So. 2d 306 (Fla. 1984)
- Rushing v. Jacksonville Elec. Auth., 352 So. 2d 853 (Fla. 1977)
- Murray Rubin v. State, 390 So. 2d 322 (Fla. 1980)
- Mead v. State, 101 So. 2d 373 (Fla. 1958)
- State of Fla. ex rel. Arthur Eugene Manucy v. The Honorable W. L. Wadsworth, 293 So. 2d 345 (Fla. 1974)
- Perez v. State, 545 So. 2d 1357 (Fla. 1989)