Wells v. State, 90-597
| Decision Date | 20 December 1990 |
| Docket Number | No. 90-597,90-597 |
| Citation | 571 So.2d 563,16 Fla. L. Weekly 65 |
| Parties | 16 Fla. L. Weekly 65 Robyn WELLS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Kenneth Witts, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., Daytona Beach, for appellee.
On June 13, 1986 charges were filed against Robyn Wells alleging that she committed grand theft during the period September, 1985 through January, 1986. A capias based on that information was improperly served on a Robin Wells who had no connection with the alleged theft. The initial action was nol prossed and a new information was filed in February, 1988. The capias, however, was not executed until August, 1989--some three years and seven months after the alleged offense.
Wells moved to dismiss the charge because the applicable statute of limitation required that prosecution "commence" within three years of the date the offense was committed. The trial court denied her motion. We reverse.
Section 775.15(5), Florida Statutes (1985) defines the term "commence" as follows:
(5) 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. (Emphasis added.)
Once the jurisdiction of the court is challenged by raising the statute of limitations, the state has the burden of establishing that the prosecution is not barred by such limitation. State v. King, 282 So.2d 162 (Fla.1973); Walker v. State, 543 So.2d 353 (Fla. 5th DCA 1989).
The state argues that the delay in executing the capias in this case was not unreasonable; however, the issue in pre-arrest delay is not merely reasonableness as it relates to the amount of time involved, but also whether the state was diligent in its efforts to execute the capias in order to bring the defendant before the court within the statutory limit. See Walker v. State, supra. Although the state asserts that there is a credible explanation for the delay, no testimony concerning the reason for the delay or concerning the state's efforts to execute the capias was presented below. An eighteen month delay without...
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...any evidence to explain or excuse its delay in serving the arrest warrant in this case is fatal to the prosecution. See Wells v. State, 571 So.2d 563 (Fla. 5th DCA 1990) (receded from on different grounds in State v. Hampton, 692 So.2d 278 (Fla. 5th DCA 1997)); Fleming, 524 So.2d 1146. Ther......
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...the information was filed more than three years after the offense. The dismissal was based on this court's opinion in Wells v. State, 571 So.2d 563 (Fla. 5th DCA 1990) and section 775.15(2)(b), Florida Statutes. The state, on the other hand, contends that Wells is clearly erroneous and that......
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