Bragenzer v. State, 90-2261
| Decision Date | 03 July 1991 |
| Docket Number | No. 90-2261,90-2261 |
| Citation | 582 So.2d 142 |
| Parties | 16 Fla. L. Weekly D1762 Joe BRAGENZER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Noel A. Pelella, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., Daytona Beach, for appellee.
Defendant Joe Bragenzer appeals his conviction and sentence following his plea of no contest to uttering a worthless check. Defendant argues that the trial court erred in denying his motion to dismiss which raised the applicable statute of limitations as a defense. We agree and reverse.
Once the jurisdiction of the court has been challenged by raising the statute of limitations as a defense the state has the burden of establishing that the prosecution is not barred. On January 5, 1984 defendant was charged with uttering a worthless check on May 25, 1983, in violation of section 832.05(4)(a) of the Florida Statutes (1983), a third degree felony. A prosecution for a third degree felony must be "commenced" within three years after it is committed. Sec. 775.15(2)(b), Fla.Stat. (1983). This three-year limitation was also subject to a maximum three-year extension pursuant to section 775.15(6), which provides:
(6) 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, but in no case shall this provision extend the period of limitation otherwise applicable by more than 3 years.
Section 775.15(5) defines the term "commence" as follows:
(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.
The word "executed" has been construed as meaning the completion of service on the defendant. State v. Fields, 505 So.2d 1336 (Fla.1987).
The issues in pre-arrest delay are whether the capias was executed without unreasonable delay and whether the state was diligent in its efforts to execute the capias in order to bring the defendant before the court within the statutory limit. Wells v. State, 571 So.2d 563 (Fla. 5th DCA 1990); Walker v. State, 543 So.2d 353 (Fla. 5th DCA 1989).
At the hearing on defendant's motion to dismiss the state established that a capias was issued for defendant on January 12, 1984. Orange County deputy sheriff Norman Boot testified that he had made one attempt to locate defendant and to execute the...
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Bonel v. State, 94-2251
...court within the statutory limit. Gilmore v. State, 602 So.2d 578 (Fla. 1st DCA), review denied, 606 So.2d 1165 (Fla.1992); Bragenzer v. State, 582 So.2d at 142; Wells v. State, 571 So.2d 563 (Fla. 5th DCA Here, the State presented no explanation regarding whether it had made any effort, le......
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Brown v. State
...state knew where the defendant had been residing for the preceding five years but made no attempt to execute capias); Bragenzer v. State, 582 So.2d 142 (Fla. 5th DCA 1991) (the trial court's ruling that one unsuccessful attempt to execute a capias was a reasonable and diligent search becaus......
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Lucas v. State, 98-1829
...burden of demonstrating that the statute does not bar prosecution. Bonel v. State, 651 So.2d 774 (Fla. 3d DCA 1995); Bragenzer v. State, 582 So.2d 142 (Fla. 5th DCA 1991). To determine whether a delay in serving the defendant has been unreasonable the court must consider whether a diligent ......
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State v. Picklesimer, 91-1977
...in its efforts to execute the capias in order to establish that the prosecution was timely.") See also, Bragenzer v. State, 582 So.2d 142 (Fla. 5th DCA1991) (Peterson, J., concurring) ("In light of ... Walker and Wells, we conclude that the state's single attempt to serve defendant in 1984 ......