PATSY SCHUSTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Patsy Schuster was charged with first-degree grand theft and pled no contest while reserving the right to appeal the denial of her motion to dismiss based on statute of limitations. The appellate court reversed, finding that the state failed to satisfy its burden of proving that the prosecution was timely under the five-year statute of limitations for grand theft, as the capias was not executed for over seven years after being issued.
The motion to dismiss should have been granted. The state bears the burden of proving that prosecution is not barred by the statute of limitations, and it failed to present sufficient evidence that it made diligent efforts to locate Schuster or that she was absent from Florida during the limitation period. The delay in executing the capias was unreasonable, and the charge is barred by the statute of limitations.
[1] A specific statute of limitations for a crime controls over more general limitations provisions.
[2] For statute of limitations purposes, a prosecution is commenced when the information is filed, unless there is an unreasonable delay in the execution of the capias.
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Join FLexlaw to unlock all legal intelligence“A prosecution is commenced, for statute of limitations purposes, when the information is filed, unless there is an 'unreasonable delay' in execution of the capias.”
Establishes the legal standard for when prosecution commences and when delay in executing a capias may excuse compliance with statute of limitations.
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Join FLexlaw to unlock all legal intelligenceSchuster was charged by information with first-degree grand theft allegedly committed between December 21, 2000 and June 20, 2001. The information was…
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Patsy Schuster pled no contest to the charge of first-degree grand theft,1 reserv*118ing her right to appeal the denial of her motion to dismiss the information on statute of limitation grounds. We agree that the motion to dismiss should have been granted, and reverse.
Schuster was charged by information with first-degree grand theft, alleged to have been committed between December 21, 2000 and June 20, 2001. The information was filed on June 21, 2001, and a capias was issued for Schuster’s arrest. However, the record reflects that Schuster was not arrested until she learned of the outstanding capias and turned herself in more than seven years later, on October 28, 2008. The crime charged is subject to a five-year statute of limitations. See § 812.035(10), Fla. Stat. (2001). This specific statute of limitations controls over the more general limitations provisions found in section 775.15, Florida Statutes. See, e.g., McLaughlin v. State, 15 So.3d 872 (Fla. 2d DCA 2009); Kidd v. State, 985 So.2d 1180 (Fla. 4th DCA 2008); State v. Telesz, 873 So.2d 1236 (Fla. 2d DCA 2004). The cause of action accrued when the crime was committed, no later than June 20, 2001.
A prosecution is commenced, for statute of limitations purposes, when the information is filed, unless there is an “unreasonable delay” in execution of the capias. § 775.15(5), Fla. Stat. (2001). In determining the reasonableness of any delay in executing a capias, the trial court must consider the state’s “inability to locate the defendant after diligent search” and “the defendant’s absence from the state.” In this case, the State failed to produce any evidence that it made an effort to locate Schuster. Instead, it argued that its delay in execution of the capias was reasonable because Schuster resided outside of Florida. However, the State’s evidence failed to establish Schuster’s absence from this state during the limitation period. See Kidd, 985 So.2d at 1181 (“The state has the burden of proving that 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.
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State v. Perez, 72 So. 3d 306 (Fla. 2d DCA 2011)…n 775.15 tolling provision applies to the more specific provision in section 812.035(10) and noting that the latter statute specified that its statute of limitations controls “notwithstanding any other provision of law”); see also Schuster v. State, 21 So. 3d 117, 118 (Fla. 5th DCA 2009) (reversing denial of motion to dismiss grand theft charge on statute of limitations grounds; specific statute of limitations for theft controlled over more general limitation provisions for prosecution of crimes). Thus, sect…
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Kari-Lynn Norton v. State, 173 So. 3d 1124 (Fla. 2d DCA 2015)…Goings v. State, 76 So. 3d 975, 978 (Fla. 1st DCA 2011) (explaining that “the state had the burden to show an inability to locate the defendant after diligent search or the defendant’s absence from the state”) (emphasis omitted); Schuster v. State, 21 So. 3d 117, 118 (Fla. 5th DCA 2009) (rejecting the State’s argument that its delay in executing the capias was reasonable in light of the State’s mere assertion that the defendant resided outside of Florida because “the State’s evidence failed to establish [de…
Authorities Cited
- Breffnay Cunnell v. State, 920 So. 2d 810 (Fla. 2d DCA 2006)
- Kidd v. State, 985 So. 2d 1180 (Fla. 4th DCA 2008)
- Lenton McCRAY v. State, 873 So. 2d 1236 (Fla. 1st DCA 2004)
- State v. Telesz, 873 So. 2d 1236 (Fla. 2d DCA 2004)
- Williams v. State, 913 So. 2d 760 (Fla. 4th DCA 2005)
- McLAUGHLIN v. State, 15 So. 3d 872 (Fla. 2d DCA 2009)