Robinson v. State
| Decision Date | 17 November 2016 |
| Docket Number | No. SC15–233.,SC15–233. |
| Citation | 205 So.3d 584 |
| Parties | Brian Michael ROBINSON, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Ross Alan Keene of Ross Keene Law, P.A., Pensacola, FL, for Petitioner.
Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, FL, for Respondent.
Brian Michael Robinson seeks review of the decision of the First District Court of Appeal in Robinson v. State, 153 So.3d 313 (Fla. 1st DCA 2014), on the ground that it expressly and directly conflicts with the decisions of the Second District Court of Appeal in State v. Perez, 72 So.3d 306 (Fla. 2d DCA 2011), and Netherly v. State, 804 So.2d 433 (Fla. 2d DCA 2001), on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. As we will explain, we approve the decision in Robinson, and disapprove the decisions in Perez and Netherly to the extent they hold that the State must prove a defendant's absence from the state hindered the prosecution or that the State conducted a diligent search for the defendant while he was continuously absent in order to toll the statute of limitations set forth in section 775.15, Florida Statutes (2008).
On July 20, 2012, Brian Michael Robinson was charged in an information in Count 1, a second-degree felony, with promoting sexual conduct by a child in violation of section 827.071(3), Florida Statutes (2007), and Counts 2 through 10, third-degree felonies, with possession of a photograph, motion picture, exhibition, show, representation or other presentation, to-wit, video or images, which included sexual conduct by a child in violation of section 827.071(5), Florida Statutes (2007).
After Robinson was arrested on a longstanding warrant for possession of child pornography, he filed a motion to dismiss, claiming that the statute of limitations applicable to second- and third-degree felonies barred his prosecution. He contended that under section 775.15(2)(b), Florida Statutes (2008), the prosecution of any felony other than a capital or first-degree felony must be commenced within three years after commission of the alleged criminal act, and that after the arrest warrant was issued on January 20, 2009, Robinson was never contacted by law enforcement regarding the warrant until June 12, 2012. The State countered that Robinson was outside of the state from May 2008 until June 2012 and, thus, the statute of limitations had not run because it was tolled during the entire time. Pursuant to section 775.15(5), Florida Statutes, (2008), the State argued, it need only prove that the defendant had been continuously absent from the state during the time in question in order to toll the statute of limitations.
Robinson disagreed and argued that in order to toll the statute of limitations, the State must show that it conducted a diligent search to locate Robinson or that his absence hindered the State's prosecution. Although Robinson did not contend that he was in the state during the time frame of May 2008 until June 2012, he alleged that at all pertinent times he was a member of the United States Army and was "available" to law enforcement, and was never "unreachable" because his address of record was his parents' home in Pace, Florida.
A hearing was held on the motion to dismiss in the circuit court of Okaloosa County, at which the parties stipulated to a number of pertinent facts. The conduct alleged in Count 1 was stipulated to have occurred on November 20, 2007, and the statute of limitations for these offenses would have run on November 21, 2010, unless it was tolled. It was stipulated that the limitations period on Counts 2 through 10, which were alleged to have occurred on February 29, 2008, would have run on March 1, 2011, unless it was tolled. The parties also stipulated that from November 20, 2007, through February 27, 2013, Robinson was in the United States Army on active duty, and that at all pertinent times Robinson's address of record was on Curtis Road in Pace, Florida. It was further stipulated that no one from law enforcement called on Robinson to turn himself in between January 2009 and June 2012, and that investigators did not speak with Robinson's parents or visit his address of record in Pace, Florida, at any time prior to his arrest in 2012.1 The evidence showed that, in March 2008, Robinson met with law enforcement officers and gave a sworn statement. Robinson agreed that he was sent from Eglin Air Force Base in Florida to Fort Bragg, North Carolina, in May 2008, and then to a base in Hawaii in January 2011. Counsel agreed that Robinson was sent from Hawaii to Afghanistan in April 2011; specifically, from April 8, 2011, to March 25, 2012, Robinson was deployed from Hawaii to Afghanistan. He returned to Hawaii in March 2012, and returned to Florida in June 2012 to visit his family, at which time he turned himself in. Robinson's counsel agreed at the hearing that when Robinson was stationed outside the state as a result of his military service, he was not at his home address in Florida, and nothing was presented to show that Robinson was not continually absent from the state during these time frames.
The record reflects that in April 2011, Okaloosa County Sheriff's Investigator Todd Watkins contacted the United States Marshals Service in Hawaii and found that Robinson had been deployed to Afghanistan. In June 2012, United States Marshals went to Robinson's residence in Hawaii and made contact with his wife, who put them into telephone contact with Robinson, who was then in Florida. On that same day in June 2012, Investigator Watkins made arrangements with Robinson to turn himself in.2 The Information charging violations of section 827.071, Florida Statutes, was subsequently filed on July 19, 2012.
Robinson's counsel argued at the motion to dismiss hearing that even though Robinson was outside Florida for most of the time during the limitations period, the State failed to make any diligent search for him, and that Robinson's absence from the state was not his fault and did not prevent the State from prosecuting him. The State countered that section 775.15(5), which provides a tolling of the statute of limitations when a defendant is continuously out of state, did not require any type of search be made or that the absence hindered the prosecution. The State further contended that during the time that Robinson was out of state and deployed to Afghanistan, there was no practical way he could have been brought back.
The trial court denied Robinson's motion to dismiss on the grounds that "[s]ection 775.15(5), Florida Statutes (2008), provides that ‘[t]he period of limitation does not run during any time when the defendant is continuously absent from the state,’ " and because the decisions of three district courts of appeal had previously held that section 775.15 tolls the statute of limitations when the defendant is continuously absent from the state.3 Based on the evidence presented and stipulations and agreement of counsel, the trial court found that "Defendant was continuously absent from the State" during the relevant time period.
Robinson then entered a plea of no contest to all the charges and was adjudicated guilty on all counts. At the plea hearing, he was sentenced on Count 1 to 42.45 months in prison to be followed by five years' sex offender probation. As to Counts 2 through 10, he was sentenced to five years' probation consecutive to his incarceration. Prior to the plea, Robinson expressly reserved the right to appeal the denial of his motion to dismiss as dispositive, to which the prosecutor agreed. The trial court allowed the reservation and Robinson appealed to the First District Court of Appeal.
On appeal, the First District affirmed the case. Robinson, 153 So.3d 313. In construing section 775.15(5), Florida Statutes (2008), the First District held that the "limitations period may be tolled, however, for the time during which the defendant is continuously absent from the state." Id. at 314. The district court further held, as it did in Pearson, that "where the defendant is continuously absent from the state, the express language of section 775.15(5) does not require that the State undertake a diligent search or show that the defendant's absence hindered the prosecution for the statute of limitations to be tolled." Id. at 314 (citing Pearson, 867 So.2d at 519 ). In reaching this conclusion, the First District found that the State proved Robinson was continuously absent from the state between May 2008 and May 2012. Id. The First District explained that its reading of section 775.15(5) in this case, as in Pearson in 2004, conflicts with the Second District's interpretation of earlier versions of the statute in Netherly and Perez. See Robinson, 153 So.3d at 314. Based on that statement, Robinson sought discretionary review, which this Court granted.
Before we discuss the court decisions cited for conflict, it is instructive to review the pertinent provisions of section 775.15, Florida Statutes (2008), which state:
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