ALPHONSO LEWIS A/K/A CALVIN GREEN, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Alphonso Lewis sought a writ of prohibition to prevent prosecution on three felony and misdemeanor charges, arguing the statutes of limitations had expired before his arrest. The court granted the petition, finding the State failed to exercise diligent search to locate Lewis within the applicable limitations periods.
The prosecution is barred by the applicable statutes of limitations. Although the information was filed within the limitations period, execution of the capias after the expiration of those periods, combined with the State's failure to conduct a diligent search to locate Lewis, requires dismissal of the charges.
[1] A prosecution is commenced when an information is filed, provided the capias is executed without unreasonable delay.
[2] When a defendant raises the statute of limitations as a defense, the State bears the burden of proving the prosecution is not barred.
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Join FLexlaw to unlock all legal intelligence“Section 775.15(5) provides that a prosecution is commenced when an information is filed, "provided the capias ... is executed without unreasonable delay."”
Establishes the statutory requirement that the capias must be executed without unreasonable delay for the prosecution to be considered timely commenced.
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Join FLexlaw to unlock all legal intelligenceAn information was filed against Lewis within the applicable statutes of limitations periods (4 years for first-degree felony, 3 years for second-degr…
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PER CURIAM.
Alphonso Lewis a/k/a/ Calvin Green has filed a petition, for writ of prohibition seeking to prohibit the State from proceeding with the prosecution of three charges against him, a first-degree felony, a second-degree felony, and a first-degree misdemeanor. Lewis claims that the prosecution is barred by the statutes of limitations set out in section 775.15, Florida Statutes (1995), which is four years for the first-degree felony, three years for the second-degree felony, and two years for the first-degree misdemeanor. Because the ca-piases for these offenses were executed after the expiration of the applicable statutes of limitations, we grant the petition for writ of prohibition.
Section 775.15(5) provides that a prosecution is commenced when an information is filed, “provided the capias ... is executed without unreasonable delay.” The information against Lewis was filed well within the limitations period; however, the State concedes that Lewis’s December 16, 1999, arrest was after the expiration of the four-year limitations period. When a defendant raises the statute of limitations as a defense to prosecution, the State has the burden to prove that the prosecution is not barred. See Neal v. State, 697 So. 2d 903 (Fla. 2d DCA 1997).
The State contends that the charges should not be dismissed because the State was unable to locate Lewis within the time prescribed by the statute after a diligent search. Testimony at the hearing on Lewis’s motion to dismiss the information revealed that during the first six months after the information was filed, the investigating detective talked with individuals in the community who might have knowledge of Lewis’s location, and “surveilled” his former residence and the residence of a woman thought to be Lewis’s girlfriend. After the initial six months, the detective continued to watch the residence of the woman he had been informed was Lewis’s girlfriend.
These efforts to locate Lewis do not rise to the level of a diligent search. The State did not offer evidence that it had checked driver’s license records, or any other readily accessible records such as utility records or the telephone book. See Neal, 697 So. 2d at 903; State v. Mack, 637 So. 2d 18 (Fla. 4th DCA 1994). Evidence presented at the hearing indicated Lewis remained in Hillsborough County and had a driver’s license and a cable account in his name during the time between issuance of the capias and his arrest.
Therefore, we grant the petition, issue the writ, and order the trial court to discharge Lewis on the charges that are the subject of the petition.
THREADGILL, A.C.J., and BLUE and GREEN, JJ., Concur.
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State v. Parks, 866 So. 2d 172 (Fla. 2d DCA 2004)…show that the capias, summons, or other process issued on the information had been executed without unreasonable delay. See, e.g., Sutton v. State, 784 So. 2d 1239 (Fla. 2d DCA 2001) (interpreting 1995 version of section 775.15(5)); Lewis v. State, 765 So. 2d 163 (Fla. 2d DCA 2000) (same). But the statute was amended effective July 1, 1997. Ch. 97-90, § 7, at 521, Laws of Fla. Parks allegedly committed his crime in 1998; therefore the amended 1997 version applies.1 The applicable version of section 775.15(5…
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Rodriguez-Cayro v. State, 828 So. 2d 1060 (Fla. 2d DCA 2002)…ber 27, 1998. The county court disagreed and denied the motion. Mr. Rodriguez-Cayro sought a writ of prohibition from the circuit court, seeking to prevent continued prosecution for any events prior to September 27, 1998. See, e.g., Lewis v. State, 765 So. 2d 163 (Fla. 2d DCA 2000) (granting writ of prohibition to prohibit prosecution for crimes barred by statute of limitations). The circuit court denied the writ. The circuit court concluded that stalking was a continuing course of conduct crime for which th…
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Sutton v. State, 784 So. 2d 1239 (Fla. 2d DCA 2001)…must check obvious sources of information — such as telephone books, driver’s license and vehicle records, and property and utility records — to establish a diligent search. Lucas v. State, 718 So. 2d 905 (Fla. 3d DCA 1998); see also Lewis v. State, 765 So. 2d 163 (Fla. 2d DCA 2000). The State failed to demonstrate a diligent search in this case. Finally, we do not believe the sister’s statement to the deputy that the appellant was in Georgia was sufficient to support a tolling of the statute pursuant to sec…
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
- State v. Mack, 637 So. 2d 18 (Fla. 4th DCA 1994)
- Neal v. State, 697 So. 2d 903 (Fla. 2d DCA 1997)