Smith v. State
| Decision Date | 21 December 2016 |
| Docket Number | No. 3D14–1635,3D14–1635 |
| Parties | Earvin SMITH, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellee.
Before SUAREZ, C.J., and WELLS, SHEPHERD, ROTHENBERG, LAGOA, SALTER, EMAS, FERNANDEZ, LOGUE and SCALES, JJ.
Appellant, Earvin Smith ("Smith"), appeals from his convictions and sentences for armed sexual battery and armed burglary. On the court's own motion, and pursuant to rule 9.331(a) and (c), Florida Rule of Appellate Procedure, we have determined it is necessary to proceed en banc in this case in order to maintain uniformity in this court's decisions.1
For the reasons that follow, we affirm the conviction and sentence for armed sexual battery, but reverse the conviction and sentence for armed burglary. We further clarify the case law within our district regarding whether the statute of limitations can be raised for the first time on appeal as to the crime charged in the information, and certify to the Florida Supreme Court a question of great public importance.
Smith was arrested and charged with three counts of armed kidnapping, three counts of aggravated assault with a firearm, and one count each of attempted armed robbery, armed burglary, and armed sexual battery. The crimes charged took place in September of 1990; however, Smith was not arrested or charged until 2011, when a DNA test of evidence collected by the Rape Treatment Center at the time of the offense yielded a match to Smith.2
In 1990 (the time of the crimes), Smith was sixteen years old. By the time of his arrest in May of 2011, Smith was thirty-six years old. Following his arrest, the State filed a felony information in adult court, charging him with the above-described crimes. At arraignment, Smith's appointed counsel entered a plea of not guilty, demanded discovery, and further demanded a trial by jury.
During the pretrial stages, Smith moved to dismiss several of the charges as barred by the statute of limitations. Specifically, Smith moved to dismiss the three counts of aggravated assault with a firearm.3 After a hearing, the State agreed with Smith's motion and nolle prossed those three counts. At that time, the trial court inquired whether the defense was seeking dismissal of any other counts based upon the statute of limitations, and defense counsel indicated they were not seeking dismissal of any other counts, and that all of the remaining counts were life felonies.4
Nevertheless, at trial following presentation of the State's case, Smith moved for dismissal of the attempted armed robbery charge, based upon the statute of limitations. The attempted armed robbery charge was a second-degree felony,5 and was therefore subject to a three-year statute of limitations. See § 775.15(2)(b), Fla. Stat. (1990). The trial court granted the motion, and dismissed the attempted armed robbery charge, leaving for the jury's consideration the charges of armed burglary and armed sexual battery. The jury found Smith guilty of both charges. The court imposed two concurrent, twenty-two year prison sentences with a three-year minimum mandatory for actual possession of a firearm.
As it turned out, the armed burglary, as charged in the information, was not a life felony (which has no statute of limitations) but a first-degree felony punishable by life (which is subject to a four-year statute of limitations).6 However, Smith did not file a motion to dismiss the armed burglary or otherwise raise a statute-of-limitations challenge to that count in the trial court.
On appeal, Smith raises two claims: 1) the State was required to prosecute him as a juvenile pursuant to the Florida Juvenile Justice Act, Chapter 39, Florida Statutes (1990) because he was sixteen years old at the time of the offenses; and 2) the conviction and sentence for the armed burglary must be reversed as barred by the statute of limitations, and may be raised for the first time on appeal as fundamental error. We review these claims de novo.
Smith argues that he should have been originally charged and tried as a juvenile because he was sixteen years old at the time of the offense. We note, preliminarily, that any such right is statutory and not of constitutional dimension. Article I, Section 15(b) of the Florida Constitution provides:
When authorized by law, a child as therein defined may be charged with a violation of law as an act of delinquency instead of crime and tried without a jury or other requirements applicable to criminal cases. Any child so charged shall, upon demand made as provided by law before a trial in a juvenile proceeding, be tried in an appropriate court as an adult. A child found delinquent shall be disciplined as provided by law.
Under Florida law, juveniles are granted "the right to be treated differently from adults," Troutman v. State , 630 So.2d 528, 531 (Fla. 1993)7 (quoting State v. Rhoden , 448 So.2d 1013, 1016 (Fla. 1984) ), but the right is granted "only to the extent provided by our legislature." State v. Cain , 381 So.2d 1361, 1363 (Fla. 1980). See also State v. G.D.M. , 394 So.2d 1017, 1018 (Fla. 1981) ; Johnson v. State , 314 So.2d 573 (Fla. 1975).
In Johnson , the defendant challenged the constitutionality of a portion of Chapter 39, contending that the statute violated the Equal Protection and Due Process clauses of the United States and Florida Constitutions because it permitted some children to be indicted and prosecuted as adults while allowing other children (who are not indicted but face similar charges via delinquency petition) to be prosecuted in juvenile proceedings. In rejecting his claim, the Court stated:
It should be clear that a young person charged with violation of criminal law does not have an absolute right to be treated as a ‘delinquent child’ solely because of age. The constitutional basis for the juvenile court system in Florida allows, but does not require, that a ‘child’ who has committed a violation of law be charged with an act of delinquency instead of a crime.
Looking to the pertinent provisions of Chapter 39, we conclude that Smith's contention is without merit. On September 15, 1990—the date when the offenses were committed—Smith was sixteen years old. Section 39.04(3)(e), Florida Statutes (1989),8 provided:
Based upon the plain language of this provision, and in light of the fact that Smith was sixteen years old at the time of the offenses, the State Attorney was authorized "to file an information when in [her] judgment and discretion the public interest requires that adult sanctions be considered and imposed." § 39.04(3)(e).
Given Smith's age at the time of the offenses, his reliance on State v. Griffith , 675 So.2d 911, 912 (Fla. 1996) is misplaced. In that case, Griffith was charged (at age twenty-two) with felonies committed when he was between the ages of fifteen and seventeen. On appeal following his conviction, Griffith argued that, because he was under the age of sixteen at the time of the offenses, the proceedings should have been commenced in accordance with chapter 39, at which time the juvenile court judge could have decided whether Griffith should be transferred to adult court.
The Florida Supreme Court agreed, but its analysis (and the applicability of section 39.04(3)(e) ) was premised upon the fact that Griffith was less than sixteen years old when he committed the crimes because the information alleged a range of dates (covering a two-year period), rather than a specific date when the offenses were committed. The court nevertheless affirmed the convictions because Griffith failed to object in the trial court, waiving any right to assert the argument on appeal.
Because Smith was concededly sixteen years old at the time of the offenses, Griffith is inapplicable and we need not reach the issue of whether Smith waived any right to juvenile proceedings by failing to raise the issue until after jeopardy had attached and the State had rested its case before the jury.9
This issue involves only the conviction and sentence for the crime of armed burglary,10 and requires us to consider evolving approaches to the statute of limitations, and to resolve conflicting decisions within our own district.
For ease of this discussion, it may be helpful to first explain what this issue does not involve. Over the years, case law has developed regarding the raising of a statute of limitations defense in two specific contexts: 1) negotiated pleas to a reduced or lesser charge (resulting in the entry of a plea to a reduced or lesser offense that would otherwise be time-barred by the statute of limitations); and 2) circumstances under which a trial court may instruct a jury to consider lesser-included offenses that are otherwise time-barred by the statute of limitations.
Whether characterized as a waiver or estoppel, Florida's district courts have held that a defendant who...
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