Statute of Limitations as a Defense
An Experienced St. Petersburg Criminal Defense Attorney Can Help
Florida's criminal statute of limitations, codified in section 775.15, proscribes the time limits within which prosecution must commence, lest the state be forever barred from doing so. Generally speaking, the applicable time frames vary based on the severity of the charge: the more severe the offense, the longer the state has to commence prosecution. Some offenses, such as murder, have no statute of limitations. In other situations, the statute may be tolled, giving the state more time to make its case that it would otherwise have. This section details the provisions of Florida's statute of limitations, the various nuances you should be aware of, and concludes with some case specific examples. Each year, it seems, the statute of limitations becomes increasingly complex, with more exceptions to its provisions. Obviously, this creates fewer opportunities for the accused to have his or her charges dismissed when the ensuing prosecution is untimely.
As a St. Petersburg criminal defense attorney, I have successfully raised this defense on a number of occasions. Where the circumstances meet the statutory criteria. this is an absolute defense. When I receive a new client call on an old case, the statute of limitations is one of the first places I look as I begin to formulate a viable defense strategy.
In accordance with the statute, the prosecution of a capital felony, a life felony, or a felony that resulted in death may be commenced at any time. Simply put, there is no statute of limitations for these crimes, which are some of the most serious under Florida law. Prosecution of a first degree felony must commence within four years after it is committed. A first degree felony is generally punishable by up to thirty years in prison, unless it is designated a PBL first degree felony, in which case the maximum period of incarceration is life. Prosecution of any other felony (second and third degree felonies) must be commenced within three years after their commission. Prosecution of a first degree misdemeanor, such as DUI, must be commenced within two years after it is committed, and prosecution of a second degree misdemeanor, such as disorderly conduct, must be commenced within a year after it is committed.
An offense is committed either (1) when every element of the crime has occurred; or (2) if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct, or the defendant's complicity therein, is terminated. The clock starts to run on the day after the offense is committed.
What is meant by "commencement of prosecution"? Here is where it gets a bit tricky. In most instances, the accused person will be arrested at the time the crime is committed, or very shortly thereafter, based on probable cause. Once the arrest is made, the prosecutor will file a charging document with the clerk of court, if he or she decides that charges are warranted, or will file what is called a "No-information" if he or she decides otherwise. In other instances, the arrest isn't made right away and there are a number of reasons for this. First, the crime may be late reported by days, weeks, months, and in some cases, years. Another reason may be an inability on the part of law enforcement to locate the accused person. A lack of probable cause is also a basis to delay taking the defendant into custody. Where the arrest is not made at or near the commission of the crime, law enforcement will refer the matter to the state attorney's office to conduct a further investigation. If the prosecutor elects to file the charge, he or she will do so, and a warrant will be issued for the defendant's arrest. As a Pinellas County state prosecutor, I conducted literally thousands of felony invests with local law enforcement officers that were based on probable cause arrests and on a non-arrested basis as well. The rules pertaining to "commencement of prosecution" are different depending on which of the two scenarios apply (e.g. an arrest based on probable cause versus a non-arrested investigation wherein a warrant is issued sometime thereafter).
Let's look first at the probable cause arrest. For those situations, the statute provides as follows: "prosecution on a charge on which the defendant has previously been arrested or served with a summons is commenced by the filing of an indictment, information, or other charging document". Simply put, if you get arrested for a crime, prosecution commences - and the statute of limitations is satisfied, the moment the state files the charging document. Even if you "vanish" for twenty years thereafter, the statute of limitations will not be violated and will provide no basis upon which to have the charge dismissed.
Let's look now at the non-arrested scenario. Here, the statute provides as follows: "a prosecution on a charge on which the defendant has not previously been arrested [emphasis added] or served with a summons, 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 a diligent search or absence from the state shall be considered. The failure to execute process on or extradite a defendant in another state who has been charged by information or indictment with a crime in this state shall not constitute unreasonable delay". Thus, where there was no arrest made, and the state files a charging document, the statute begins to run as long the warrant is executed (e.g. the defendant is arrested) within a reasonable time thereafter. Sometimes the accused is not arrested until after the applicable period of limitation has run. If the delay in making the arrest was "reasonable" because law enforcement were diligent in their search to find the accused, there is no violation of the statute and prosecution is not barred. Here is the flip side: If the charge is filed and a warrant is issued, law enforcement make little or no effort to locate and arrest the defendant, and the statute runs, the court may very well grant a motion to dismiss.
If the language seems a bit convoluted, don't fret - it is. When I was hired as a Pinellas County state prosecutor nearly twenty years ago, one of my first assignments was to defend against a motion to dismiss based on the statute of limitations, that had been filed by a local defense attorney. After reading its provisions several times, I was a bit confused as to what it meant. After actually litigating a few of them, however, it finally clicked. Sometimes putting things into practice gives way to a level of clarity you just can't get from reading a book. If you think you may have a viable statute of limitations defense, a St. Petersburg criminal defense attorney can assess its viability for you pretty quickly. OK - let's take it up a notch.
There are certain circumstances under which the statute of limitations is tolled. During these "tolling" periods, the clock stops ticking. Subsection (5) of section 775.15 provides as follows: "The period of limitation does not run during any time when the defendant is continuously absent from the state or has no reasonably ascertainable place of abode or work within the state. This provision shall not extend the period of limitation otherwise applicable by more than three years, but shall not be construed to limit the prosecution of a defendant who has been timely charged by indictment or information or other charging document and who has not been arrested due to his or her absence from the state or who has not been extradited for prosecution from another state". Simply put, if a person is charged with a crime, without having been arrested for it, and has remained in Florida, the period of limitation is tolled if the person has had no fixed address or workplace. Where the period of limitation is three years, for example, the state would have up to six years to execute the warrant. If, however. the person is charged with a crime, without having been arrested for it, and has been living outside the state, the statute is tolled indefinitely.
Prior to 1997, the statute read as follows: "The period of limitation does not run during ant time when the defendant is continually absent from the state or has no reasonably ascertainable place of abode or work within the state, but in no case shall this provision extend the period of limitation otherwise applicable by more than three years". As you can see, the statute was more favorable to the accused prior to 1997. Even if the accused lived out of state, the period of limitation was tolled by no more than three years - period. If he or she was not arrested on the warrant, the state was forever barred from prosecution. The additional post 1996 language created an indefinite tolling period for the out of state of defendant. You may be wondering what happens if the crime was committed in 1996 and the accused is arrested on the warrant in, for example, 2006? See the case specific examples below for an explanation of how that works.
Offense Specific Anomalies
Florida's statute of limitations has a number of exceptions to the otherwise applicable period of limitation, for certain offenses, which makes them longer than they would be otherwise. Most of these exceptions did not exist prior to 1997 and the list has only gotten longer since. This, and the added tolling language described above, is what I mean when I say that the statute has become increasingly intricate over time, and not in a manner that is beneficial to the criminal defendant. We are not quite to the point where the exceptions eat up the rule, but we are getting there. This part sets forth those offenses that have their own unique periods of limitation under the statute.
The prosecution for a felony that resulted in injury to any person, when such felony results from the use of a "destructive device" may be commenced within ten years. Note that this is much longer than the otherwise applicable four year limitation period for first degree felony offenses. “Destructive device” means any bomb, grenade, mine, rocket, missile, pipe bomb, or similar device containing an explosive, incendiary, or poison gas and includes any frangible container filled with an explosive, incendiary, explosive gas, or expanding gas, which is designed or so constructed as to explode by such filler and is capable of causing bodily harm or property damage; any combination of parts either designed or intended for use in converting any device into a destructive device and from which a destructive device may be readily assembled; any device declared a destructive device by the Bureau of Alcohol, Tobacco, and Firearms; any type of weapon which will, is designed to, or may readily be converted to expel a projectile by the action of any explosive and which has a barrel with a bore of one-half inch or more in diameter; and ammunition for such destructive devices, but not including shotgun shells or any other ammunition designed for use in a firearm other than a destructive device. “Destructive device” does not include: (a) A device which is not designed, redesigned, used, or intended for use as a weapon; (b) Any device, although originally designed as a weapon, which is redesigned so that it may be used solely as a signaling, line-throwing, safety, or similar device; (c) Any shotgun other than a short-barreled shotgun; or(d) Any non automatic rifle (other than a short-barreled rifle) generally recognized or particularly suitable for use for the hunting of big game.
A prosecution for a felony violation of chapter 517 or section 409.920 must commence within 5 years after the violation is committed. Chapter 517 is known as the "Florida Securities and Investor Protection Act" and section 409.920 pertains to Medicaid provider fraud.
A prosecution for a felony violation of section 825.102 or section 825.103 must be commenced within 5 years after it is committed. These sections deal with abuse, neglect, and/or exploitation of an elderly person or a disabled adult.
A prosecution for a felony violation of section 440.105 and section 817.234 must be commenced within 5 years after it is committed. Section 440.105 deals with certain types of false and fraudulent insurance claims.
Under section (12) of 775.15, if the period of limitation has run for any first, second or third degree felony including, specifically, a felony violation of: (1) Chapter 517 or section 409.920 (Securities or Medicaid fraud); (2) Chapter 403 (certain environmental crimes); (3) Sections 825.102 or 825.103 (abuse, neglect, or exploitation of an elderly or disabled adult); or (4) Sections 440.105 or 817.234 (fraudulent insurance claims), prosecution may still commenced if the offense involves either: (a) fraud or breach of fiduciary obligation within one year after discovery of the offense by an aggrieved party, or by a person who has a legal duty to represent an aggrieved party, and who is himself or herself not a party to the offense, or (b) misconduct in office by a public officer or employee at any time when the defendant is public office or employment, within two years from the time he or she leaves public office or employment, "or during any time permitted by any other part of this section, whichever is greater". In the former scenario (involving fraud or breach of fiduciary obligation), the period of limitation otherwise applicable cannot be extended by more than three years.
The reasoning behind these exceptions is because many crimes involving fraud or dishonesty do not come to light right away. It can sometimes take years to uncover these types of crimes, particularly when they involve a vulnerable victim or where the accused has a fiduciary duty to the victim. Usually, the fiduciary is the person entrusted to guard against fraud, so that person is, may times, in a position to conceal it. The same can be said for crimes involving official misconduct. The accused in that situation, because of his or her official position, is often times able to conceal evidence of wrongdoing for as long as they retain it. By extending the period of limitation otherwise applicable in these scenarios, the legislature has made it much less likely that a criminal defense attorney will be able to absolve his or her client from criminal prosecution through a statute of limitations defense.
Offense Specific Anomalies (Sex Crimes)
If the victim of a violation of section 794.011 (sexual battery), section 800.04 (lewd and lascivious molestation), section 826.04 (incest), or section 847.0135(5) (child pornography) and he or she is under the age of 18, the applicable period of limitation (if there is one), does not begin to run until the victim reaches the age or 18 or the violation is reported to a law enforcement agency, whichever occurs earlier. The law enforcement agency is required to promptly report the allegation to the state attorney in the judicial circuit where the offense occurred.
If the offense is a first degree or second degree felony violation of section 794.011 (sexual battery), and the offense was reported within 72 hours of its commission, the prosecution for the offense may be commenced at any time (e.g. there is no statute of limitation). Recall, once again, that generally speaking, the prosecution of a first degree felony must be commenced within four years and prosecution for a second or third degree felony must be commenced within three years. This section of the statute eliminates the period of limitation altogether for the crime of sexual battery if is reported within 72 hours.
The statute goes on to carve out more exceptions to the limitations period involving violations of 794.011, as follows:
- If the offense is a first degree felony violation of section 794.011 and the victim is under the of 18 at the time of its commission, prosecution may be commenced at any time.
- If the offense is a violation of section 794.011 and the victim was under 16 at the time of its commission, prosecution may be commenced at any time.
- Except as provided above, a prosecution for a first or second degree felony violation of section 794.011, where the victim is 16 years of age or older at the time of its commission, must be commenced within 8 years after the violation is committed.
A violation of section 787.06 (human trafficking) may be commenced at any time.
The reason for extending the applicable limitations period (and in some instances eliminating it altogether) in these types of cases is the same. These types of crimes are often not reported until years after they are committed. Victims of sex crimes are often scared and humiliated by what occurred which can deter them from reporting the crime to law enforcement. By starting the clock when the crime is reported, or when the victim turns 18, the likelihood that the accused will escape prosecution on the ground that it is time-barred is significantly reduced.
Offense Specific Anomalies Where the Accused is Identified Through DNA Analysis
A prosecution for any of the following offenses may be commenced at any time after the date on which the identity of the accused is established, or should have been established by the exercise of due diligence, through the analysis of DNA evidence:
- Aggravated Battery or any felony battery offense under Chapter 784;
- Kidnapping under section 787.01 or false imprisonment under section 787.02;
- An offense of sexual battery under chapter 794;
- A lewd or lascivious offense under section 800.04, section 825.0125, or section 847.0135(5);
- A burglary offense under section 810.02;
- A robbery offense under section 812.13, section 812.131, or section 812.135;
- Carjacking under section 812.133; or
- Aggravated child abuse under section 827.03.
Case Specific Examples
As indicated above, one of my first assignments as a Pinellas County state prosecutor was to defend against a motion to dismiss based on the statute of limitations in a worthless check case. The defendant was never arrested on the charge, but an information was filed and a summons was issued. When the defendant failed to appear for the arraignment, a warrant was issued for his arrest. The warrant was executed several years later and the defendant had never lived outside of Florida. I did all I could to establish that the delay in locating the defendant was not unreasonable. Despite my best efforts, the judge dismissed the case. Although I was not successful in defeating the motion to dismiss, I learned a very valuable lesson that day: issue spotting and effective motion drafting by a skilled criminal defense attorney can have a profound impact on the outcome of a case. It would not be the last time I saw a savvy criminal defense attorney work magic for a client through knowledge, skill and sheer grit. Litigating against some of the best criminal defense attorneys in Tampa Bay, as a young Pinellas County state prosecutor, has in many ways shaped the attorney I am today.
Here is another example. Several years ago (long after I had left the state attorney's office and was working as a St. Petersburg area criminal defense lawyer) I had a potential client contact me regarding an outstanding warrant for his arrest on a carrying a concealed firearms charge. The client lived out of state, but was residing in St. Petersburg at the time the offense was committed, which was in 1991. With regard to the underlying allegations, he explained that on the day in question, he walked his dog to a nearby tavern and tied the dog to a tree before going inside. After having a couple of drinks, he walked out and saw several individuals antagonizing his dog. He confronted the individuals and a physical altercation ensued. My client advised that he was being beaten badly, so he removed a 9mm handgun from his pocket, and shot two of his attackers. The police immediately responded and my client was taken to the hospital. He was not arrested on the charge, likely because of his hospitalization, but the matter was referred to the state attorney's office for prosecution. The state elected to file the carrying a concealed firearms charge, a third degree felony offense, and a warrant was issued for my client's arrest.
In 2011, some twenty years after the charge was filed, he became aware of the warrant while living in another state. He retained me to assist him in having the warrant withdrawn. Because the case was so old, I knew that there could be a viable statute of limitations problem for the state. Because the crime was committed in 1991, I believed that the pre-1997 version of the statute should apply - even though we were dealing with the matter in 2011. Some quick research confirmed that the pre-1997 version applied to the case and therefore, his absence from the state would extend the period of limitation otherwise applicable by no more than three years. In short, the charge was no longer viable and was subject to being dismissed. In lieu of filing a motion to dismiss and setting a hearing, I wrote a letter to the prosecutor explaining my position that the statute had run. The prosecutor agreed and filed a nolle prosse. The warrant was immediately withdrawn.
In another recent matter, prospective client contacted me and advised he was quite shaken after learning that there was a warrant for his arrest out of Pinellas County. He now resided out of state and had no idea that the warrant had been active for twenty years. He advised that the mid 1990's were a difficult time in his life, and he had no idea what the warrant could be for. Upon being retained, I contacted the Pinellas County State Attorney's Office and got some additional information on the matter. I was able to pull a copy of the charging document and learned that it was a worthless check situation. The check had been written in 1995 to a local vendor, and returned as NSF. I called the assigned prosecutor to discuss the matter. She agreed that the statute of limitations had run and advised she would drop the charge and have the warrant recalled. My client was quite pleased with the outcome, but advised he wanted to make good on the check anyway, as the local vendor was still in business after all these years. My client paid the restitution, and the state nolle prossed the charge.
The Bottom Line
In formulating a viable defense strategy in "older" criminal cases, the statute of limitations is one the first areas your St. Petersburg criminal defense attorney will want to explore. Over the years, the statute has become increasingly complex, and the exceptions to the its time-barring provisions have increased dramatically. Given the right set of circumstances, however, it can be a valuable tool in having a criminal charge dismissed or nolle prossed. I've had it happen for my clients time and time again.
If you think you have a viable statute of limitations defense in your Pinellas or Hillsborough County criminal matter, an experienced attorney can help. At The Kilfin Law Firm, P.C., the initial consultation is always free.
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