Abdullah v. State
Decision Date | 13 August 2004 |
Docket Number | No. 5D03-3114.,5D03-3114. |
Citation | 883 So.2d 843 |
Parties | Saboor ABDULLAH, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
Saboor Adib Abdullah ["Abdullah"] appeals the denial of his motion to suppress. We affirm.
On January 19, 2003, Abdullah was stopped by an Orange County deputy for riding his bicycle at night without a light. A radio check revealed that Abdullah had an outstanding 1993 warrant for petit theft. He was arrested. During a search incident to the arrest, crack cocaine and drug paraphernalia were found in his pockets.
Abdullah was charged with possession of cocaine and possession of drug paraphernalia. He filed a motion to suppress, arguing that his arrest was illegal because prosecution for the 1993 offense had not "commenced" within the time limitations set forth in section 775.15(2), Florida Statutes (2003), which states that "[a] prosecution for a misdemeanor of the first degree must be commenced within two years after it is committed," and "[a] prosecution for a misdemeanor of the second degree must be commenced within one year after it is committed." See § 775.15(2)(c) & (d), Fla. Stat. (2003). The trial court denied the motion to suppress, ruling that the 1993 prosecution for petit theft had been timely "commenced" against Abdullah by the filing of the information in November 1993. In so holding, the court apparently relied on an amended version of section 775.15, Florida Statutes (2003), which provides that "[p]rosecution 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." § 775.15(5)(a), Fla. Stat. (2003). Following the denial of his motion to suppress, Abdullah pled guilty, reserving the right to appeal.
The trial court was in error in holding that prosecution of Abdullah for the petit theft had been timely "commenced" within the meaning of the statute of limitations. Applicable statutes of limitation are the ones in effect at the time of the acts giving rise to the criminal charges. See State v. Shamy, 759 So.2d 728 (Fla. 4th DCA 2000); Brown v. State, 674 So.2d 738, 739, n. 1 (Fla. 2d DCA 1995). Regarding "commencement" of prosecution, the 1993 statute provided:
(5) 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. If, however, an indictment or information has been filed within the time period prescribed in this section and the indictment or information is dismissed or set aside because of a defect in its content or form after the time period has elapsed, the period for commencing prosecution shall be extended 3 months from the time the indictment or information is dismissed or set aside.
Id. (emphasis added).
Brown, 674 So.2d at 740. Here, there is no evidence that "process" of any kind was issued following Abdullah's arrest, which was necessary to "commence" prosecution of the petit theft under the 1993 version of the statute. See State v. Parks, 866 So.2d 172 (Fla. 2d DCA 2004); Sutton v. State, 784 So.2d 1239 (Fla. 2d DCA 2001); State v. Watkins, 685 So.2d 1322 (Fla. 2d DCA 1996).1
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