Neal v. State

• Decision Date: 18 July 1997
• Docket Number: No. 97-01109,97-01109
• Citation: 697 So.2d 903
• Parties: 22 Fla. L. Weekly D1749 Billy Jean NEAL, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

Page 903

697 So.2d 903

22 Fla. L. Weekly D1749

Billy Jean NEAL, Petitioner, v. STATE of Florida, Respondent.

No. 97-01109.

District Court of Appeal of Florida,

Second District.

July 18, 1997.

James Marion Moorman, Public Defender, and Deborah Lynn Melnick, Assistant Public Defender, Bartow, for Petitioner.

Robert Butterworth, Attorney General, Tallahassee, and Tonja R. Vickers, Assistant Attorney General, Tampa, for Respondent.

PER CURIAM.

Billie Jean Neal seeks a writ of prohibition forbidding the trial court to proceed with her criminal prosecution. She maintains that the court lacks jurisdiction because the State commenced her prosecution after the statute of limitations for the charged offenses had lapsed. We agree. Accordingly, we grant Neal's petition and order the trial court to discharge her.

Prohibition is an appropriate method by which a criminal defendant who asserts that her prosecution is barred by the statute of limitations may challenge the trial court's jurisdiction to go forward. Cheffer v. Judge, Division "S", 15th Judicial Circuit, 614 So.2d 632 (Fla. 4th DCA 1993). We have jurisdiction.

The proceedings against Neal stemmed from her alleged involvement in a motor vehicle accident in Polk County on August 24, 1991. At that time she was charged with several criminal traffic offenses, including leaving the scene of an accident involving personal injury, a felony. ¹ After Neal's arraignment was twice continued, she failed to appear on the third scheduled court date, October 14, 1991. On that day, the prosecutor announced a "no bill." The trial court record contains a written form memorandum on which the court initially indicated that Neal had failed to appear, and that a warrant was ordered for her arrest. This notation was then lined through, presumably when the assistant state attorney announced the decision not to proceed with the prosecution. The record is silent concerning the reason for Neal's failure to appear; we cannot discern whether she intended to elude prosecution, or perhaps had been advised of the State's plan to dispense with prosecution and simply failed to attend as a matter of personal convenience.

In any event, on December 30, 1991, the State filed an information with a new case number, charging Neal with driving under the influence with personal injury and with leaving the scene of an accident with injury, crimes growing out of the August 24, 1991, episode. After a summons to appear was returned unserved, the court issued a capias for Neal's arrest. The capias was not executed until November 27, 1996, when Neal was detained following a routine traffic stop in Duval County. Neal moved to dismiss the information on the ground that her prosecution was barred by the statute of limitations.

When a criminal defendant challenges her prosecution as untimely commenced under the statute of limitations, the State has the burden to prove that the prosecution is not barred by the statute. State v. King, 282 So.2d 162 (Fla.1973); Colvin v. State, 541 So.2d 724 (Fla. 2d DCA 1989). A prosecution is commenced for these purposes "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." § 775.15(5), Fla. Stat. (1989). An unexcused delay in serving the appropriate process until after the statute of limitations has run bars prosecution for the offenses charged. See generally Brown v. State, 674 So.2d 738 (Fla. 2d DCA 1995); State v. Miller, 581 So.2d 641 (Fla. 2d DCA 1991). Under section 775.15(6), Florida Statutes (1989), "[t]he 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 does that provision extend the applicable limitation period by more than three years. See Brown, 674 So.2d 738 n. 2; see also King v. State, 687 So.2d 917 (Fla. 5th DCA 1997); State v. Picklesimer, 606 So.2d 473, 475 (Fla. 4th DCA 1992).

Here, the most serious charge against Neal, leaving the scene of an accident with personal injury, is a third-degree felony, prosecution for which must be commenced within three years after it is committed. § 775.15(2)(b). During the three-year period following Neal's alleged offenses, the State timely undertook the first step in the commencement of her prosecution by filing the information. But it did not accomplish the second step, service of the capias, until more than five years after the date of the offenses.

Nonetheless, the State could have maintained its prosecution of Neal if it had proven either of two circumstances. First, the State might have demonstrated that the limitations period had been tolled pursuant to section 715.15(6), such that the service of the capias actually fell within the period. King, 687 So.2d at 919. The State's other alternative was to prove that its service of process beyond the limitations period was not unreasonable because it had been unable to locate Neal despite a diligent search. § 775.15(5); Picklesimer, 606 So.2d at 475-76.

At the hearing on Neal's motion, the assistant state attorney filed a sworn written traverse which alleged the following:

1) A computer search based on Neal's name and date of birth disclosed that her last known place of abode was an identified residence in Lakeland, Florida.

2) There was no indication in any public record of Neal's whereabouts.

3) Neal was known to have eight aliases.

4) Neal had no vehicle registered in her name, no property interests, no insurance, no license to drive, no professional licenses, and no voter registration.

The traverse asserted that "pursuant to section (6) of Fla. Stat. 775.15, the period of limitation should be tolled accordingly." At the hearing, the assistant state attorney added that when Neal was arrested she advised the Duval County Sheriff's Office that she was a self-employed housekeeper.

The trial court denied Neal's motion to dismiss. This was error, because the State wholly failed to meet its burden of proof. The prosecutor's unsworn representation obviously was not evidence. See Blimpie Capital Venture, Inc. v. Palms Plaza Partners, Ltd., 636 So.2d 838 (Fla. 2d DCA 1994) (holding that an attorney's argument interspersed with unsworn representations of fact cannot support a factual finding by a trial court); State v. Brugman, 588 So.2d 279 (Fla. 2d DCA 1991) (holding that, absent a stipulation, unsworn statements by attorney on motion to dismiss criminal charge do not establish facts, and the failure of opposing counsel to object does not cure the deficiency because orders on such a motion must be supported by competent evidence). The same is true of the traverse, which simply was filed with the court. Filing a document does not place it in evidence. See Turtle Lake Assocs., Ltd. v. Third Financial Services, Inc., 518 So.2d 959 (Fla. 1st DCA 1988) (observing that the filing of a mortgage as an appendix to a complaint does not obviate the need to admit it into evidence for consideration of its content, and holding that pleadings are not themselves evidence); see also Fair v. Kaufman, 647 So.2d 167 (Fla. 2d DCA 1994). ² Even if the prosecutor had made his statement in testimony under oath, reporting facts developed by a third party, or if the State had attempted to introduce the traverse into evidence, both properly would have been rejected as inadmissible hearsay. § 90.801, Fla. Stat. (1995).

Moreover, the facts advanced by the State would have been insufficient to satisfy its burden even if they had been proved. Nothing in the traverse or the prosecutor's representations established that Neal had been continuously absent from the state, or had lacked a reasonably ascertainable place of abode or work, at any time during the three years following her alleged offenses, as was required to toll the limitations period under section 715.15(6).

Nor did the State sufficiently allege that it was unable to serve the capias on Neal during the limitations period despite making diligent efforts to do so. The traverse did not disclose the source of the information it alleged, but the nature of that information implied a search that extended no further than the sundry public records. That was not enough. As the Fourth District pointed out in State v. Mack, 637 So.2d 18 (Fla. 4th DCA 1994), there are many other potential sources of information that could lead to the discovery of a person's whereabouts. ³ Some--the telephone directory, for example--are so common and easily accessible that no search that omitted them could possibly be deemed diligent.

Even more glaring was the failure of the traverse to...