THE STATE OF FLORIDA, APPELLANT,
v.
LEOPOLDO HELLMUND, A/K/A LEOPOLDO HELLMOND, APPELLEE
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Florida's appellate court reversed a trial court's dismissal of charges against Hellmund, holding that he waived his statute of limitations defense by failing to raise a service of process argument in his timely motion to dismiss filed within the required deadline.
Hellmund waived the service of process issue by failing to raise it in his timely motion to dismiss, and the trial court erred in granting his later motion to dismiss.
[1] Defenses available to a defendant by plea, other than not guilty, must be raised by a motion to dismiss the indictment or information.
[2] A defendant must move to dismiss the indictment or information before or upon arraignment, unless the court grants further time.
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Join FLexlaw to unlock all legal intelligence“Except for objections based on fundamental grounds, every ground for a motion to dismiss that is not presented by a motion to dismiss within the time hereinabove provided for shall be taken to have been waived.”
States the core waiver rule under Florida Rule of Criminal Procedure 3.190(c) that applies to Hellmund's case
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Join FLexlaw to unlock all legal intelligenceHellmund was arraigned on December 13, 1994, and given until January 20, 1995, to file a motion to dismiss. He filed a timely motion on January 20, 19…
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PER CURIAM.
Florida Rule of Criminal Procedure 3.190 provides in pertinent part:
(b) Motion to Dismiss; Grounds. All defenses available to a defendant by plea, other than not guilty, shall be made only by motion to dismiss the indictment or information, whether the same shall relate to matters of form, substance, former acquittal, former jeopardy, or any other defense.
(c) Time for Moving to Dismiss. Unless the court grants further time, the defen dant shall move to dismiss the indictment or information either before or upon arraignment. The court in its discretion may permit the defendant to plead and thereafter to file a motion to dismiss at a time to be set by the court. Except for objections based on fundamental grounds, every ground for a motion to dismiss that is not presented by a motion to dismiss within the time hereinabove provided for shall be taken to have been waived.
In the instant case, defendant was arraigned on December 13, 1994 and given until January 20, 1995, to file his motion to dismiss. On January 20, 1995, defendant filed his motion, however he did not raise any issue regarding service of process. On December 31, 1997, almost three years later, defendant again filed a motion to dismiss. In that motion, for the first time, defendant asserted that even if the information was filed within the limitations period, the prosecution was still barred by the statute of limitations because defendant was not served with process during that period. Under these circumstances, pursuant to Rule 3.190, we conclude the defendant'waived the issue, and the trial court erred in granting defendant’s motion.
Accordingly, the order is reversed and the cause is remanded for trial.
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Henry v. State, 830 So. 2d 188 (Fla. 3d DCA 2002)…to locate and arrest him, in the absence of evidence that the State had conducted a diligent search. However the facts of the instant case are distinguishable from Lewis. Rather, directly applicable to defendant Henry’s claim, is State v. Hellmund, 723 So. 2d 284 (Fla. 3d DCA 1998), wherein we concluded that Hellmund waived his claim on motion to dismiss that service of process was untimely, where his original motion to dismiss did not raise a limitation on prosecution claim and his motion raising the claim…