STATE OF FLORIDA, APPELLANT,
v.
ROBERT W. KIRCHHOF, APPELLEE
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The State appealed the dismissal of a felony DUI charge against Kirchhof based on expiration of the statute of limitations. The court affirmed the dismissal, holding that the three-year limitations period for felony DUI expired before the State filed the felony information, and that the State's failure to charge felony DUI in the original proceeding meant it could not later charge that separate crime after the limitations period had run.
The statute of limitations was not tolled, and the State could not charge felony DUI after the limitations period expired. The three-year limitations period for felony DUI expired on May 1, 2007, and the February 5, 2010 filing was beyond that period. Felony DUI is a separate crime requiring proof of an additional element, and the State's failure to charge it within the limitations period barred later prosecution.
[1] A statute of limitations for a felony DUI charge is not tolled by a defendant's plea to a misdemeanor DUI charge arising from the same incident, if the felony charge was…
[2] When a defendant withdraws a plea to a misdemeanor charge, the original information for that misdemeanor is reinstated.
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“the limitations period for the felony DUI case expired May 1, 2007. Thus the filing of the information in 2010 was well beyond the limitations period.”
Establishes the critical factual basis for the statute of limitations bar
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn May 1, 2004, Kirchhof was arrested for misdemeanor DUI, entered a plea, and received a judgment and sentence. Kirchhof later moved to withdraw his …
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The State of Florida timely appeals the lower court’s order dismissing the information charging Robert Kirchhof with felony DUI based on the expiration of the statute of limitations. We find no error below and affirm.
On May 1, 2004, Kirchhof was arrested for misdemeanor DUI. He entered a plea to that charge, and a judgment and sentence were entered in accordance with the plea agreement. Kirchhof subsequently moved to withdraw his plea, claiming it was involuntary. The trial court granted his motion and vacated the judgment and sentence. On February 5, 2010, the State filed an information charging Kirchhof with felony DUI based on the same May 1, 2004 event that resulted in his misdemean- or charge. Thereafter, Kirchhof filed a motion to dismiss the information based on the expiration of the three-year statute of limitations period applicable to third-degree felonies.1 The court agreed with Kirchhof and dismissed the felony DUI charge based on the expiration of the statute of limitations period.
On appeal, the State contends that because Kirchhof successfully moved to withdraw his plea, he should be returned to the position he was in before he entered his plea. The State further argues that the limitations period was tolled from the time Kirchhof entered his plea to the time his conviction was vacated. We disagree.
In the instant case, the limitations period for the felony DUI case expired May 1, 2007. Thus the filing of the information in 2010 was well beyond the limitations period. Moreover, by setting aside the plea, the information charging misdemeanor DUI was revived. See Geiger v. State, 532 So.2d 1298, 1301 (Fla. 2d DCA 1988) (upon withdrawal of plea the original information is reinstated making the commencement of the prosecution within the limitation period). However, the State never charged Kirchhof with felony DUI within the statute of limitations period, which is a separate crime from misdemeanor DUI, requiring proof of an additional element. See State v. Woodruff, 676 So.2d 975, 977 (Fla.1996). Because Kirchhof was never charged with felony DUI in the initial proceeding and was subsequently charged beyond the limitations period, the trial court properly dismissed the information.
AFFIRMED.
GRIFFIN and EVANDER, JJ„ concur.
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Citator
Authorities Cited
- State v. Woodruff, 676 So. 2d 975 (Fla. 1996)
- Geiger v. State, 532 So. 2d 1298 (Fla. 2d DCA 1988)