State v. Mack, 93-2401
| Decision Date | 11 May 1994 |
| Docket Number | No. 93-2401,93-2401 |
| Citation | 637 So.2d 18 |
| Parties | 19 Fla. L. Weekly D1057 STATE of Florida, Appellant, v. Lisa D. MACK, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., Tallahassee, and John Tiedemann, Asst. Atty. Gen., West Palm Beach, for appellant.
Richard L. Jorandby, Public Defender, and Mallorye G. Cunningham, Asst. Public Defender, West Palm Beach, for appellee.
The state appeals an order granting defendant's motion to dismiss an information on the ground that the statute of limitations had expired before the capias was served. We affirm.
The state filed an information charging defendant with several third degree felonies on December 3, 1984, alleging they had been committed between April and June 1982. A capias was issued on December 3, 1984, but was not served on defendant until January 29, 1993.
The statutes of limitation applicable are those which were in effect at the time of the incidents giving rise to the criminal charges. State v. Picklesimer, 606 So.2d 473, 474 (Fla. 4th DCA 1992), review denied, 618 So.2d 210 (1993). The state had three years from the commitment of the crimes to commence prosecution on two of the third degree felonies, which involved insurance fraud, and five years to commence prosecution for the charge of grand theft. Sections 775.15(2)(b) and 812.05(1), Florida Statutes (1981).
Section 775.15(5), Florida Statutes (1981) provided in pertinent part:
A prosecution is commenced 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. In determining what is reasonable, inability to locate the defendant after diligent search or the defendant's absence from the state shall be considered.
In the present case the trial court held an evidentiary hearing on the statute of limitations and found as a matter of fact that the state was not diligent in its search.
The state's evidence as to its efforts to serve defendant can be summarized as follows. An officer checked defendant's residence in Broward County once in February and once in March 1985, and discovered defendant had moved and not left a forwarding address. A notation in the file said she had possibly moved to Largo, Florida. In May 1985 a Tampa investigator could not locate defendant in Largo after checking with the company managing the apartment at her supposed address, the telephone company, and the utility company.
There was a notation in the file that a criminal background and driver's license check in 1987 did not reveal anything. In June 1993 an investigator did a driver's license check, and it revealed that the defendant had a driver's license under the name of Lisa Schneider. It was then discovered that the defendant had obtained a marriage license in Broward County in November of 1985, and that her married name was Schneider.
We affirm the order of dismissal because we conclude that the record supports the trial court's finding that there was an unreasonable delay. State v. Fields, 505 So.2d 1336 (Fla.1987). Although there is not an abundance of case law to guide us as to what the state must do to make a diligent search in criminal cases, in Kyte v. State, 49 Fla.Supp.2d 40, 42 (5th Cir.Ct.1991), Judge McNeal, writing in a similar case on appeal from county court, looked to civil cases:
Civil cases apply a common sense approach in evaluating whether a search was diligent. The test is "whether the complainant reasonably employed knowledge at his command" in making the search. McDaniel v. McElvy, 91 Fla. 770, 108 So. 820, 831 (1926). If obvious sources of information are not utilized, there is not a diligent search. See, e.g. Wiggam v. Bamford, 562 So.2d 389 (Fla. 4th DCA 1990) (...
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Neal v. State
...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 ......
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Beasley v. State, A00A0333.
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Bonel v. State, 94-2251
...in criminal cases are to be liberally construed in favor of the accused. Reino v. State, 352 So.2d 853 (Fla.1977); State v. Mack, 637 So.2d 18 (Fla. 4th DCA 1994). A prosecution for burglary of a dwelling, which is a second degree felony, must be commenced within three years after it is com......
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