THE STATE OF FLORIDA, APPELLANT,
v.
ISMAEL GARCIA AND GUSTAVO TRIANA, APPELLEES
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The State of Florida appealed the dismissal of a new murder/manslaughter information filed against Garcia and Triana, arguing the statute of limitations should not bar reprosecution after the trial court granted a new trial. The court affirmed the dismissal, holding that the voluntary dismissal of the original information by the state did not toll the two-year statute of limitations, and the state could not refile after the limitations period had expired.
The statute of limitations bars reprosecution where an information is voluntarily dismissed by the state after the two-year limitations period has elapsed, unless the dismissal was because of a defect, omission, or insufficiency in the information. The trial court's order vacating the judgment did not expressly toll the statute of limitations, and the voluntary dismissal was not based on a defect in the information, so the new information was barred.
[1] A statute of limitations for criminal prosecution is not tolled by an order vacating a judgment of conviction and sentence unless the order expressly so provides.
[2] A voluntary dismissal of an information by the state, not based on a defect, omission, or insufficiency in its form or content, does not toll the statute of limitations.
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Join FLexlaw to unlock all legal intelligence“where an information is dismissed, after the two year limitation period has elapsed, 'because of any defect, omission or insufficiency in the contents or form thereof,' further informations may be filed for such offense 'within three months after the entry of the order * * * quashing or setting aside the indictment or information.'”
Establishes the statutory exception allowing refiling within three months only when dismissal is for defect, omission, or insufficiency
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Join FLexlaw to unlock all legal intelligenceGarcia and Triana were charged with second degree murder. After trial, Triana was convicted of second degree murder and Garcia of manslaughter. The co…
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The appellees were charged by information with the crime of second degree murder. They were tried together. Trianawas convicted of second degree murder. Garcia was convicted of manslaughter, a lesser degree of homicide. The defendants appealed, and the judgments were affirmed. Subsequently, on motions of the defendants filed in the trial court under Rule 1.850 CrPR, 33 F.S.A., the court entered an order setting aside the judgments and sentences and granting the defendants a new trial. That order was made more than two years after the date upon which the offenses were alleged to have been committed. Thereafter the state voluntarily moved for and obtained an order dismissing the initial information. Later the state filed a new information, in which Triana again was charged with second degree murder and Garcia was charged with manslaughter.
On motion of the defendants the trial court dismissed the new information, on the ground that prosecution thereunder was barred by the applicable two year statute of limitations, § 932.05 Fla.Stat., F.S.A. This appeal is by the state from that order.
After reciting in some detail the history of the case as above set out, the order appealed from provided as follows:
“7. The Defendants have moved to dismiss the second Information on the ground that prosecution on the crimes charged in the Information were barred by the Statute of Limitations, Fla.Stat. Sec. 932.05, F.S.A.
Conclusions of Law
“1. The Court’s order vacating and setting aside the Defendants’ judgments of conviction and sentences under Rule 1.850 of the Florida Rules of Criminal Procedure did not expressly toll the Statute of Limitations (Fla.Stat. Sec. 932.05, F.S.A.) period of two (2) years. Since the Information herein was filed nearly four (4) years from the date of the alleged crime, the prosecution of the crime charged in the Information is barred by Fla.Stat. Sec. 932.05, F.S.A.
“2. The original Information was voluntarily dismissed on its own motion and was not quashed because of a defect, omission or insufficiency in the contents or form of the Information, and consequently does not toll the Statute of Limitations under Fla.Stat. 932.05, F.S.A.
*295“Ordered and Adjudged that the Defendants’ Motion to Dismiss are hereby-granted and the Defendants are finally discharged from the cause.”
We approve the reasoning and conclusion of the trial court as applied to the facts and circumstances of this case. The cited statute, prescribing a two year limitation for instituting prosecution for the offense or offenses involved, also provides that where an information is dismissed, after the two year limitation period has elapsed, “because of any defect, omission or insufficiency in the contents or form thereof,” further informations may be filed for such offense “within three months after the entry of the order * * * quashing or setting aside the indictment or information.” However, dismissal of the information in this case, on motion of the state, was not because of any defect omission or insufficiency in content or form.
The state’s contention that the new information should be acceptable on the basis of linkage with the initial prosecution is without merit. The linkage theory as applied in State v. Adjmi, Fla.App.1965, 170 So.2d 340, is not applicable here. In Adjmi, where the state permitted the first information to stand undismissed and filed a second information, it was held that both in-formations were left standing and that trial could proceed under either. Nor can this case benefit by the rule that the effect of the statute of limitations can be avoided by amending an information, to the extent required by the nature of the case, after the statutory period has elapsed. See State v. O’Neal, Fla.App. 1965, 174 So.2d 564. Therefore, when the state, more than two years after the date fixed for the offenses, caused the information to be dismissed for a reason or reasons other than those specified in the exception contained in § 932.05 Fla.Stat., F.S.A., the initial prosecution was terminated, and due to the lapse of time could not thereafter be commenced. See State v. McCloud, Fla.1953, 67 So.2d 242.
Affirmed.
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Geiger v. State, 532 So. 2d 1298 (Fla. 2d DCA 1988)…ate v. Hickman, 189 So. 2d 254, 261 (Fla. 2d DCA), cert. denied, 194 So. 2d 618 (1966). Generally, when the state nolle prosses a charge, it cannot file a new information on the same charge after the statute of limitations has run. State v. Garcia, 245 So. 2d 293 (Fla. 3d DCA 1971); State v. Guerra, 245 So. 2d 889 (Fla. 3d DCA 1971). Under the facts of this case, however, the state need not file new infor-mations, because we are directing that the original informations be reinstated. The reinstatement of the…
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McBRIDE v. Pratt & Whitney & Ace USA, 909 So. 2d 386 (Fla. 1st DCA 2005)…ion. See, e.g., 21 Am.Jur.2d Criminal Law § 315 (2005); Geiger v. State, 532 So. 2d 1298, 1301 (Fla. 2d DCA 1988); State ex rel. Ball v. Goodman, 249 So. 2d 481 (Fla. 3d DCA 1971); State v. Guerra, 245 So. 2d 889 (Fla. 3d DCA 1971); State v. Garcia, 245 So. 2d 293 (Fla. 3d DCA 1971). We have previously inferred that this rule applies in workers’ compensation cases. Kinsey v. Skyline Corp., 395 So. 2d 626, 627 (Fla. 1st DCA 1981). See also Morris Canning Corp. v. Blanchard, 528 So. 2d 493 (Fla. 1st DCA 1988).…
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DI Stefano v. Langston, 274 So. 2d 533 (Fla. 1973)…ains that we are confronted here with a valid statute as it is and not as it perhaps might be improved.” Judge White’s comments are of course now subject to any application of our subsequent Speedy Trial Rule.2 The Third District’s State v. Garcia, 245 So. 2d 293 (Fla.App.1971), is another case where the quashed information failed to have the necessary reference to an earlier commencement of the prosecution. State v. O’Neal, 174 So. 2d 564 (Fla. App.2d 1965), mentioned in Garcia holds [*537] that a subseque…
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. Adjmi, 170 So. 2d 340 (Fla. 3d DCA 1964)
- State v. Knox O'Neal, 174 So. 2d 564 (Fla. 2d DCA 1965)
- City OF Clearwater v. Caldwell, 67 So. 2d 242 (Fla. 1953)