CECIL COLEMAN, SR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Cecil Coleman appealed his conviction for trespassing after pleading nolo contendere and reserving his right to challenge the denial of his motion to dismiss. The court reversed, holding that the state failed to establish a diligent search for the defendant, causing the two-year statute of limitations for the misdemeanor to expire before prosecution was actually commenced.
The court held that the state failed to establish a diligent search because it made no effort beyond an initial unsuccessful mailing. The delay in executing the capias was therefore unreasonable, and the applicable limitations period expired before prosecution commenced, requiring reversal and discharge of the defendant.
[1] A prosecution for a first-degree misdemeanor is deemed commenced when an information is filed, provided a capias issued on that information is executed without unreasonab…
[2] A delay in executing a capias is unreasonable when the state fails to conduct a diligent search for the defendant.
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“A prosecution is deemed commenced, however, at the time the information is filed, provided the capias issued on the information is executed without "unreasonable delay."”
Establishes that while an information file date starts the limitations period, execution of the capias must occur without unreasonable delay for prosecution to be deemed timely commenced.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAn information was filed in May 1990 charging grand theft and trespassing for offenses occurring in November 1989. Although the capias was timely issu…
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PER CURIAM.
The appellant challenges the judgment and sentence imposed upon him after he pled nolo contendere to trespassing and reserved the right to appeal the denial of his motion to dismiss. We reverse.
In May 1990, an information was filed charging grand theft and trespassing which offenses were alleged to have occurred in November 1989. Although timely issued, the capias was not executed until March 1993, long after the applicable two-year limitations period had expired.
Section 775.15(2)(c), Florida Statutes (1989), requires that the state commence prosecution for a first degree misdemeanor (e.g., trespassing) within 2 years of the offense. A prosecution is deemed commenced, however, at the time the information is filed, provided the capias issued on the information is executed without “unreasonable delay.” An inability to locate the defendant despite a diligent search shall be considered in determining whether a delay is reasonable. § 775.15(5), Fla.Stat. (1989).
In the instant case, the extent of the state’s efforts to serve the appellant consisted of an unsuccessful mailing that was returned because appellant had moved without leaving a forwarding address. In Chapman v. State, 581 So. 2d 995 (Fla. 2d DCA 1991), a similar, but more extensive search was found not to be diligent and thus, the delay in executing the capias was deemed unreasonable. In Chapman, the state inquired of postal authorities and utility companies in an effort to locate the defendant after its initial attempted service failed due to an incorrect address. The appellate court concluded that the state’s failure to pursue the leads uncovered in its subsequent inquiries rendered the search insufficient. See State v. Mack, 637 So. 2d 18 (Fla. 4th DCA 1994) (to establish a diligent search the state must check obvious sources of information and then pursue any leads uncovered in its inquiries).
The appellee argues that the instant case is unlike Chapman because, here, the state did not fail to pursue promising leads. By this argument the appellee overlooks the fact that the complete absence of a search, diligent or otherwise, precluded the discovery of leads in this case. In short, the state failed to establish a diligent search, and the delay in executing the capias was therefore unreasonable. Consequently, the applicable limitations period expired before the prosecution commenced.
We reverse and remand with instructions to discharge the appellant.
ERVIN, MINER and BENTON, JJ., concur.
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McNEIL v. State, 673 So. 2d 125 (Fla. 3d DCA 1996)…d the delay cannot be held sufficiently reasonable.1 See State v. Fields, 505 So. 2d 1336 (Fla.1987) (service of warrant more than three years and seven months after execution and information filing constituted unreasonable delay); Coleman v. State, 655 So. 2d 1239 (Fla. 1st DCA 1995) (delay unreasonable where state’s efforts to serve capias consisted only of unsuccessful mailing); State v. Mack, 637 So. 2d 18, 19 (Fla. 4th DCA 1994) (“[T]he state must check obvious sources of information and follow-up any lea…
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Dudley Lamont Mackey v. State, 333 So. 3d 775 (Fla. 1st DCA 2022)…012 when the crimes were allegedly committed. The informations filed in May 2013 would have commenced prosecution, obviating any statute of limitations issues, so long as the capiases were executed without unreasonable delay. See Coleman v. State, 655 So. 2d 1239, 1239 (Fla. 1st DCA 1995). Petitioner contends that for almost five years there was no diligent search by the State, and as such, the State has failed to show the execution of the capiases were not unreasonably delayed. We agree. “A petition for…1 / 2
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Williams v. State, 833 So. 2d 297 (Fla. 1st DCA 2002)…h DCA 1992). To do this, the state .had to present evidence that it made a diligent search to locate and serve the appellant within the statute of limitations period. See § 775.15(5), Fla. Stat. (1995); Fleming, 524 So. 2d at 1147; Coleman v. State, 655 So. 2d 1239, 1239 (Fla. 1st DCA 1995); Norris v. State, 784 So. 2d 1188, 1189 (Fla. 2d DCA 2001); Neal v. State, 697 So. 2d 903, 905 (Fla. 2d DCA 1997); Bonel v. State, 651 So. 2d 774, 776 (Fla. 3d DCA 1995). The record does not reflect that the state presented…
Authorities Cited
- State v. Mack, 637 So. 2d 18 (Fla. 4th DCA 1994)
- Hugene Chapman v. State, 581 So. 2d 995 (Fla. 2d DCA 1991)