STATE OF FLORIDA
v.
KURT ANDREW GRAMMIG
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A prosecution commenced by information in 1986 was not barred by the statute of limitations despite a 26-year delay in serving the capias, because the State made diligent attempts to locate the defendant and the defendant's flight and use of aliases justified the delay.
[1] In determining whether service of an arrest capias was executed without unreasonable delay under the statute of limitations, the court must consider the totality of circu…
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Join FLexlaw to unlock all legal intelligence“A prosecution is commenced when either an indictment or information is filed, provided the capias, summons, or other process issued on such indictment or information is executed without unreasonable delay. In determining what is reasonable, inability to locate the defendant after diligent search or the defendant's absence from the state shall be considered.”
Statutory provision from § 775.15(5), Fla. Stat. (1985) governing when prosecution commences and what constitutes reasonable delay in service.
The State filed an information in May 1986 charging the defendant with sexual battery, aiding and abetting sexual battery, and kidnapping, and issued …
The full statement of facts, procedural history, and disposition for this case are member content.
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
STATE OF FLORIDA,
Appellant,
v.
KURT ANDREW GRAMMIG,
Appellee.
Case No. 5D17-3416
Opinion filed April 12, 2019
Appeal from the Circuit Court for Brevard County, Jeffrey Mahl, Judge.
Ashley Moody, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellant.
Brandon K. Breslow, James Felman, and Katherine Earle Yanes, of Kynes, Markman & Felman, P.A., Tampa, for Appellee.
PER CURIAM.
The State appeals the trial court's order granting the defendant's motion to dismiss on statute of limitations grounds. We reverse and remand for further proceedings.
In May of 1986, the State filed an information charging the defendant with sexual battery, aiding and abetting sexual battery, and kidnapping. An arrest capias was issued, but the State did not serve it on the defendant until March of 2012 when he turned himself
in to Minnesota law enforcement. He subsequently filed a motion to dismiss arguing that the statute of limitations had expired. After a lengthy evidentiary hearing, the trial court granted his motion and this appeal timely followed.
We consider whether prosecution of the defendant commenced after the expiration of the statute of limitations due to an unreasonable delay by the State in serving the capias. See § 775.15(5), Fla. Stat. (1985).1 Based upon the totality of the circumstances, we disagree with the trial court's finding that the delay by the State was unreasonable.
Although, arguably, law enforcement could have conducted a more thorough investigation, there was testimony that they made several diligent attempts to locate the defendant. Further, there was uncontradicted evidence that the defendant fled from the state and attempted to avoid prosecution with the use of multiple aliases. Therefore, in considering both the efforts exercised by the State and the defendant's attempts to avoid prosecution, we find that the State met its burden to prove that it served the defendant without unreasonable delay. See Goings v. State, 76 So. 3d 975 (Fla. 1st DCA 2011).
REVERSED and REMANDED for further proceedings.
BERGER, EISNAUGLE, and GROSSHANS, JJ., concur.
A prosecution is commenced when either an indictment or information is filed, provided the capias, summons, or other process issued on such indictment or information is executed without unreasonable delay. In determining what is reasonable, inability to locate the defendant after diligent search or the defendant's absence from the state shall be considered.