Fridovich v. State, 87-0409

• Decision Date: 04 January 1989
• Docket Number: No. 87-0409,87-0409
• Citation: 537 So.2d 648,14 Fla. L. Weekly 100
• Parties: 14 Fla. L. Weekly 100 Edward Adam FRIDOVICH, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 648

537 So.2d 648

14 Fla. L. Weekly 100

Edward Adam FRIDOVICH, Appellant, v. STATE of Florida, Appellee.

No. 87-0409.

District Court of Appeal of Florida,

Fourth District.

Jan. 4, 1989.

Rehearing and Rehearing En Banc Denied Feb. 15, 1989.

Glen L. Brock, Lakeland, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Deborah Guller, Asst. Atty. Gen., West Palm Beach, for appellee.

DOWNEY, Judge.

Appellant, Edward Adam Fridovich (Fridovich), was originally charged with first degree murder for the homicide of his father on December 4, 1981. A jury verdict of manslaughter was appealed to this court and reversed because the trial court refused to allow an expert witness to testify for Fridovich that the shooting was accidental, Fla.App., 489 S.2d 143. The case was remanded for a new trial or further proceedings in accordance with the opinion and our mandate issued August 1, 1986. Thereafter, on September 18, 1986, the state filed an information styled "Re-file Information for Manslaughter," in which it was alleged that Fridovich, "through his own act, procurement, or culpable negligence did kill ... Martin Fridovich [his father], by shooting him with a firearm ... contrary to F.S. 782.07" (manslaughter).

Prior to trial Fridovich moved in limine to restrict the evidence at trial to manslaughter and to preclude evidence of any higher degree of offense, since to allow such evidence would create double jeopardy problems. The motion was granted.

The trial resulted, again, in a verdict of manslaughter, after which Fridovich moved for a judgment of acquittal because the information on which he was tried was filed four and one-half years after the alleged offense and was barred by the Statute of Limitations, section 775.15, Florida Statutes. The thrust of his contention is that the information, filed September 18, 1986, had no appropriate language linking it to the prior prosecution and the statute of limitations had run. The motion for acquittal was denied and this appeal followed.

Fridovich presents three issues for consideration on appeal; however, we believe only one merits consideration here. The question we choose to discuss is whether the trial court erred in refusing to grant a judgment of acquittal because the statute of limitations had run on the offense charged in the information filed September 18, 1986.

We begin by pointing out that we are not concerned with a problem of double jeopardy. Fridovich was tried for first degree murder and found guilty of manslaughter. That conviction was reversed for a new trial due to errors occurring during the trial. Thus, jeopardy is not considered to have attached because the defendant was erroneously convicted and the judgment reversed. State v. Adjmi, 170 So.2d 340 (Fla.3d DCA 1964).

Next, we consider the purpose of the statute of limitations in question. In State v. Garofalo, 453 So.2d 905, 906 (Fla.4th DCA 1984), this court characterized that purpose as:

The sole purpose of a statute of limitations in the criminal context is to prevent the State from hampering defense preparation by delaying prosecution until a point in time when its evidence is stale and defense witnesses have died, disappeared or otherwise become unavailable. See State v. Hickman, 189 So.2d 254 (Fla.2d DCA 1966). Since one who has been squarely put on notice of criminal activities with which he is charged is in a position to begin preparation of a defense on those charges, courts have traditionally held that a valid indictment tolls the statute of limitations, and that...