State v. Miller, 90-02231
| Decision Date | 14 June 1991 |
| Docket Number | No. 90-02231,90-02231 |
| Citation | 581 So.2d 641 |
| Parties | 16 Fla. L. Weekly D1613 STATE of Florida, Appellant, v. Carey D. MILLER, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., Tallahassee, and Dell H. Edwards, Asst. Atty. Gen., Tampa, for appellant.
James Marion Moorman, Public Defender, and John S. Lynch, Asst. Public Defender, Bartow, for appellee.
The State of Florida has appealed a trial court order dismissing an information filed against the appellee, Carey D. Miller, who alleged that the statute of limitations prohibited the state from proceeding against him. We affirm.
On January 3, 1985, the state filed a four count information charging the appellee with sale of diazepam, possession of diazepam, sale of marijuana, and possession of marijuana. The crimes were allegedly committed on March 15, 1984. A capias for the appellee's arrest was issued on January 25, 1985, but the appellee was not arrested until September 21, 1989.
The appellee filed a motion to dismiss the charges against him on the basis of section 775.15(2)(b), Florida Statutes (1983), which requires the state to commence a prosecution for a third degree felony within three years of the offense. At the conclusion of the hearing on the appellee's motion, the trial court granted the motion, and the state filed a timely notice of appeal from the order discharging the appellee.
Although the state filed an information against the appellee within three years of the alleged offenses, the mere filing of an information does not commence a prosecution. A prosecution is not commenced by filing an information unless a capias is issued and executed without unreasonable delay. Sec. 775.15(5). In this case, the trial court properly determined that there was an unreasonable delay in executing the capias.
In determining what is reasonable, the inability to locate a defendant after diligent search or the defendant's absence from the state shall be considered. Sec. 775.15(5). At the hearing on the appellee's motion to dismiss, the state did not seriously contend that it had made a diligent search for the appellee, and the evidence would not have supported such a finding. The state did, however, contend that it established that the appellee was out of the state of Florida for at least a portion of the time, and therefore, the delay was not unreasonable. We disagree.
Once the jurisdiction of the court is challenged by the raising of the statute of limitations, the state has the burden of establishing that the offense is not barred by the statute. Fleming v. State, 524 So.2d 1146 (Fla. 1st DCA 1988) (). The state, in this case, presented evidence that the appellee was in Indiana for a few months in 1986. Assuming that this evidence was sufficient to shift the burden to the appellee, as it would if the speedy trial rule was at...
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...with a crime in this state shall not constitute an unreasonable delay.” Ch. 97–90, § 1, at 514, Laws of Fla. 6. In State v. Miller, 581 So.2d 641, 642 (Fla. 2d DCA 1991), the state contended that delay in executing a capias on Miller was not unreasonable because it established that he was o......
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...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......
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...the issuance of a capias do not, alone, commence prosecution. The capias must also be executed without unreasonable delay. State v. Miller, 581 So.2d 641 (Fla. 2d DCA), review dismissed, 584 So.2d 999 (Fla.1991). The word "executed" means completion of service on the defendant. State v. Fie......
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