Fleming v. State, BS-162
| Decision Date | 13 May 1988 |
| Docket Number | No. BS-162,BS-162 |
| Citation | 13 Fla. L. Weekly 1168,524 So.2d 1146 |
| Parties | 13 Fla. L. Weekly 1168 Myron FLEMING, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael E. Allen, Public Defender, W.C. McLain, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., Kurt L. Barch, Asst. Atty. Gen., Tallahassee, for appellee.
Appellant, Myron Fleming, seeks review of the trial court's order denying his motion to dismiss the information charging him with escape from the Florida State Prison. He asserts the trial court erred in denying his motion to dismiss on the ground that the statute of limitations had expired prior to commencement of the prosecution for this crime. We agree and reverse.
On December 25, 1982, appellant escaped from prison. Four days later on December 29, 1982, an information was filed and a capias issued. Appellant remained free until May 23, 1986 when he was confined in the Douglas County Jail in Marietta, Georgia. He remained there until November 7, 1986 when he was returned to the Florida State Prison from which he had escaped. On November 19, 1986, appellant pro se filed a motion to dismiss the information on the ground that the three-year statute of limitations had expired. Thereafter on December 3, 1986, the capias was executed, about four years after it had been issued.
The above facts were presented at the motion hearing, at which appellant represented himself. During the entire hearing, counsel for the state was silent. The trial court denied the motion on the ground that appellant had not been within the custody of the State of Florida and had not been apprehended here.
Thereafter appellant was tried by a jury and convicted of escape. The trial court subsequently imposed a guidelines sentence of 3 1/2 years imprisonment to run consecutive to the sentence he was currently serving.
Once the jurisdiction of the court is challenged by the raising of the statute of limitations, the state has the burden of establishing that the offense is not barred by the statute of limitations. State v. King, 282 So.2d 162 (Fla.1973); Akers v. State, 370 So.2d 81 (Fla. 1st DCA 1979).
A prosecution for escape, which is a second degree felony, must be commenced within three years after it is committed. Section 775.15(2)(b), Florida Statutes (1981). To determine when a prosecution commences, we look to section 775.15(5) which states in pertinent part:
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...
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Goings v. State
...determination that execution of the capias did not entail unreasonable delay within the meaning of the statute. Cf. Fleming v. State, 524 So.2d 1146, 1147 (Fla. 1st DCA 1988) (trial court erred in denying Fleming's motion to dismiss on the ground that the statute of limitations had expired ......
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Neal v. State
...the State had not proved that its delay in serving the warrant was reasonable; Fleming's conviction was reversed. See Fleming v. State, 524 So.2d 1146 (Fla. 1st DCA 1988). 4 See also Gilmore v. State, 602 So.2d 578 (Fla. 1st DCA 1992) (holding that the trial court properly denied a prison e......
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Boyd v. State, 96-2349
...question in the trial court, the burden was on the state to establish that revocation had been timely commenced. See Fleming v. State, 524 So.2d 1146 (Fla. 1st DCA 1988) (when jurisdiction is challenged by claim that statute of limitations has run, burden is on state to establish that prose......
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Bonel v. State, 94-2251
...arrest warrant on appellant prior to the expiration of the limitations period. See Wells v. State, 571 So.2d at 563; Fleming v. State, 524 So.2d 1146 (Fla. 1st DCA 1988). Clearly, the State was aware of appellant's whereabouts because appellant was incarcerated in a state institution. Becau......