ANGELA YVONNE WILLIAMS, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Angela Yvonne Williams was charged with grand theft in 1998 but not served with a capias until 2005. The court held that the state failed to conduct a diligent search as required to delay the statute of limitations, and granted her petition for writ of prohibition to dismiss the prosecution.
The court held that the state failed to conduct a diligent search as required by statute. The state must check obvious sources such as telephone books, city directories, driver's license records, voter registration records, utility companies, and schools. Because the state presented no evidence of attempting to locate the defendant through any of these methods, there was no competent substantial evidence supporting a finding of diligent search.
[1] Prosecution for grand theft must be commenced within five years of the offense.
[2] A prosecution is commenced when an indictment or information is filed, provided the capias is executed without unreasonable delay.
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Join FLexlaw to unlock all legal intelligence“Prosecution for grand theft, a third degree felony, must be commenced within five years. § 812.035(10), Fla. Stat. (1998). A prosecution is commenced when an indictment or information is filed, assuming the capias is executed without unreasonable delay.”
Establishes the applicable five-year statute of limitations for grand theft prosecutions and the requirement for timely execution of the capias.
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Join FLexlaw to unlock all legal intelligenceWilliams was charged with grand theft in 1998 but remained unaware of the charge until served with a capias in 2005. Throughout the seven-year period,…
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KLEIN, J.
We substitute this opinion for the opinion filed on September 28, 2005.
Petitioner was charged with having committed grand theft in 1998, but she was not aware of it until 2005, when she was served with the capias. She moved to dismiss for failure to prosecute within the statute of limitations and her motion was denied. We have jurisdiction to review this order by writ of prohibition. Carcaise v. Durden, 382 So. 2d 1236 (Fla. 5th DCA 1980); Reino v. State, 352 So. 2d 853 (Fla.1977). See also Sherrod v. Franza, 427 So. 2d 161 (Fla.1983) (prohibition is an appropriate remedy for violation of our speedy trial rule). We grant the petition.
Prosecution for grand theft, a third degree felony, must be commenced within five years. § 812.035(10), Fla. Stat. (1998). A prosecution is commenced when an indictment or information is filed, assuming the capias is executed without unreasonable delay. § 775.15(5)(b), Fla. Stat. Inability to locate the defendant after diligent search shall be considered in determining what is a reasonable delay. Id.
Defendant testified, and none of her testimony was contradicted, that from 1998 until the present time, she had at all times lived in Broward County. She had been at her current address for one year and had lived at three prior addresses for about two years each. She received her electric utility bill at these addresses until about 2003, when she started using a P.O. box. She had received a jury summons at her P.O. box address. Her voter registration cards showed her addresses in Broward County, and she has had a Florida driver’s license throughout the entire period. She was employed in Broward County during this time, and her children had been enrolled in the Broward County schools with her home address listed in their registrations. In State v. Mack, 637 So. 2d 18 (Fla. 4th DCA 1994), we held that, in order to establish that it has performed a diligent search, the state must check obvious sources of information, such as the telephone book, the city directory, driver’s license records, voter registration records, utility companies, schools, and other suggested sources.
The state presented no evidence that it had attempted to locate defendant through any of the above methods. A printout from the Broward Sheriffs Office, the only evidence on which the trial court relied, showed at best that the state had checked on a person with the same name who had been taken into custody in Georgia. There was thus no competent substantial evidence to support the trial court’s finding of a diligent search. We grant the petition for writ of prohibition and order that the defendant be discharged.
POLEN and SHAHOOD, JJ., concur.
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Citator
Cited By
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Schuster v. State, 21 So. 3d 117 (Fla. 5th DCA 2009)…prosecution is not barred by the statute of limitations.”) (citations omitted). Therefore, the motion to dismiss should have been granted. McLaughlin, 15 So. 3d at 876; Cunnell v. State, 920 So. 2d 810, 812-13 (Fla. 2d DCA 2006); Williams v. State, 913 So. 2d 760 (Fla. 4th DCA 2005). Accordingly, we reverse Schuster’s conviction and sentence, and remand with directions that the trial court dismiss the charge. REVERSED AND REMANDED. PALMER and JACOBUS, JJ„ concur. . See § 812.014(1) and (2)(a), Fla. Stat.…
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State v. Thomas, 26 So. 3d 659 (Fla. 4th DCA 2010)…(Fla. 4th DCA 2008). “[I]nability to locate the defendant after diligent search or the defendant’s absence from the state shall be considered” in determining what is a reasonable delay. Id.; see § 775.15(5)(b), Fla. Stat. (2003); Williams v. State, 913 So. 2d 760, 761 (Fla. 4th DCA 2005). Here, appellant was arrested over five years after the cause of action accrued. The only testimony at the hearing below was that appellant was continuously available in Florida since 2003. The state offered no testimony to…
Authorities Cited
- Sherrod v. The Honorable Arthur J. Franza, 427 So. 2d 161 (Fla. 1983)
- Rushing v. Jacksonville Elec. Auth., 352 So. 2d 853 (Fla. 1977)
- Renaldo Reino, Sr. v. The State of Fla. & the Honorable Gerald T. Wetherington, 352 So. 2d 853 (Fla. 1977)
- State v. Mack, 637 So. 2d 18 (Fla. 4th DCA 1994)
- Carcaise v. The Honorable J. Robert Durden, 382 So. 2d 1236 (Fla. 5th DCA 1980)