Mackey v. State
| Decision Date | 26 January 2022 |
| Docket Number | 1D21-1326 |
| Citation | 333 So.3d 775 |
| Parties | Dudley Lamont MACKEY, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida District Court of Appeals |
Stacy A. Scott, Public Defender, and Rachael O'Brien, Assistant Public Defender, Gainesville, for Petitioner.
Ashley Moody, Attorney General, and David Welch, Assistant Attorney General, Tallahassee, for Respondent.
Petitioner seeks to prohibit the trial court from proceeding with his two felony drug cases contending that the three-year statute of limitations has long since run. See § 775.15(2)(b), Fla. Stat. (2012) ().* Petitioner moved to dismiss the charges, and after an evidentiary hearing, that motion was denied by the trial court. Petitioner now seeks relief from our court. Since there was no diligent search for the Petitioner for almost five years, the statute of limitations has run, and we grant the petition and order Petitioner discharged.
In January 2013, two bench warrants issued for the arrest of Petitioner for drug offenses which allegedly occurred in June 2012 in Alachua County. Those warrants were not served on Petitioner. In May 2013, the State filed informations in case numbers 01-2013-CF-078-A and 01-2013-CF-079-A. Each information charged Petitioner with one count of sale of a controlled substance and one count of possession of cocaine. The sale charges were second degree felonies, while the possession charges were third degree felonies. See § 893.13(1)(a)1., (6)(a) (2012). In June 2013, capiases were issued in each case. Those capiases were not served on Petitioner until July 2020.
In situations, as here, where a person has not previously been arrested or served with a summons, prosecution commences when an indictment or information is filed provided that "the capias ... is executed without unreasonable delay." § 775.15(4)(b), Fla. Stat. (2012). "In determining what is reasonable, inability to locate the defendant after diligent search or the defendant's absence from the state shall be considered." Id. A court must liberally construe the provisions of the applicable statute of limitations in favor of the accused. Reino v. State , 352 So. 2d 853, 860 (Fla. 1977). The State must prove by competent, substantial evidence that prosecution is not barred when a defendant raises whether the applicable statute of limitations has expired. Robinson v. State , 153 So. 3d 313, 314 (Fla. 1st DCA 2014) ; Williams v. State , 833 So. 2d 297 (Fla. 1st DCA 2002).
Here, the statute of limitations started running in June 2012 when the crimes were allegedly committed. The informations filed in May 2013 would have commenced prosecution, obviating any statute of limitations issues, so long as the capiases were executed without unreasonable delay. See Coleman v. State , 655 So. 2d 1239, 1239 (Fla. 1st DCA 1995). Petitioner contends that for almost five years there was no diligent search by the State, and as such, the State has failed to show the execution of the capiases were not unreasonably delayed. We agree.
"A petition for writ of prohibition is a proper method to challenge before trial the denial of a motion to dismiss a criminal prosecution that is barred by the statute of limitations." Morelli v. State , 198 So. 3d 997, 999 (Fla. 4th DCA 2016) (citations omitted); see also MacKinnon v. State , 891 So. 2d 1175, 1175–76 (Fla. 1st DCA 2005). The trial court's findings in denying a motion to dismiss due to expiration of the statute of limitations are subject to a writ of prohibition if such findings are not supported by competent, substantial evidence. Morelli , 198 So. 3d at 999.
At the hearing on Petitioner's motion to dismiss, the State called Sergeant Barrett Boyette of the Alachua County Sheriff's Office (ACSO) Warrants Bureau as its sole witness. Sergeant Boyette had no personal knowledge of the search for Petitioner but was able to testify to certain business records kept by the ACSO. The trial court had evidence through Sergeant Boyette of the diligent search for Petitioner until April 2014. For the remainder of 2014, 2015, and 2016, the only purported "search" for Petitioner was a single advertisement each year in the Gainesville Sun newspaper. For 2017 and 2018, there was no evidence presented of any search or even a newspaper advertisement. The trial court had evidence that the diligent search resumed in January 2019, leading to Petitioner's arrest in July 2020.
Sergeant Boyette also testified to the search by the ACSO of the National Crime Information Center (NCIC) database to show that Petitioner was out of state on two dates. According to Sergeant Boyette, the NCIC search showed that Petitioner was arrested in Vidalia, Georgia, in November 2016 and that arrest included charges from a January 2015 incident in Vidalia. The State maintained that Petitioner's absence from the State tolled the statute of limitations.
Petitioner's counsel lodged a hearsay objection to Sergeant Boyette's testimony about the NCIC search, but the trial court overruled the objection. Still, Sergeant Boyette did not have any personal knowledge of the NCIC database. Nor did he testify about how NCIC records were created, whether they were created at or near the time of the event by a person with knowledge, or whether they were kept in the ordinary course of a regularly conducted business activity. Thus, the State did not show the elements required for application of the business records exception as to the results of NCIC search. See Yisrael v. State , 993 So. 2d 952, 956–57 (Fla. 2008). Accordingly, the search results from the NCIC database should have therefore been excluded and do not amount to competent, substantial evidence of any absence by Petitioner from the State.
But even considering the NCIC database, there was insufficient evidence to show that Petitioner was absent from the State of Florida for any time other than one day in January 2015 and one day in November 2016. "The period of limitation does not run during any time when the defendant is continuously absent from the state...." § 775.15(5), Fla. Stat. Here, there was no evidence to show Petitioner was continuously absent from the State. For instance, no evidence was presented to show Petitioner was incarcerated or resided in Georgia for any period between April 2014, when the diligent search was suspended, and January 2019, when the search resumed. Cf. State v. Soebhag , 163 So. 3d 672, 674 (Fla. 2d DCA 2015) (). At best, the NCIC results showed Petitioner was absent from the State for two days during an almost five-year period of no diligent search. Proof of two days out of Florida does not equal proof of a "continuous absence" to toll the statute of limitations.
In proving the diligence required to show a reasonable delay in the service of a capias, the State must show that it investigated leads and checked obvious sources of information. Coleman , 655 So. 2d at 1239 (citing State v. Mack , 637 So. 2d 18 (Fla. 4th DCA 1994) ); see also Cunnell v. State , 920 So. 2d 810, 813 (Fla. 2d DCA 2006). "Obvious sources of information [for a diligent search] include the telephone book, the city directory, driver's license records, vehicle license records, property tax records, voter's registration records, the probation office, local utility companies, law enforcement agencies, state attorney's office, schools, armed forces, and prison system." Mack , 637 So. 2d at 19–20 (quoting Kyte v. State , 49 Fla. Supp. 2d 40, 42 (Fla. 5th Cir. Ct. 1991)). "Other sources are relatives of the defendant and witnesses in the case." Id . at 20. Agents of the State are expected to use obvious sources of information, including internet searches, and this aligns with the requirement that the diligence requirement be liberally construed in favor of the accused. Norton v. State , 173 So. 3d 1124, 1128 (Fla. 2d DCA 2015).
"This is not to suggest that the State must exhaust every source of readily available information to satisfy its burden of demonstrating a diligent search." Id . (citing Mack , 637 So. 2d at 20 ). Here, however, there was no evidence that the State used any of these resources in searching for Petitioner from April 2014 until January 2019. The Gainesville Sun advertisements alone cannot show diligent search under Coleman , Cunnell , Mack , and Norton . And even if the NCIC records are considered, the proof of absence from the State for two days does not excuse the failure to engage in diligent search for almost five years. Coleman , 655 So. 2d at 1239.
"The sole purpose of a statute of limitations in a 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." Young v. State , 784 So. 2d 1249, 1251 (Fla. 1st DCA 2001) (citations omitted). Petitioner should not have to face charges from an incident that occurred nine and a half years ago, when the State presented insufficient evidence of a diligent search for almost five of those years. As a result, we grant the petition for writ of prohibition and order that Petitioner be discharged based on the three-year statute of limitations having run in case numbers 01-2013-CF-078-A and 01-2013-CF-079-A.
PETITION GRANTED; DISCHARGE ORDERED .
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