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MOTION TO DISMISS BASED UPON STATUTE OF LIMITATIONS


FLORIDA CRIMINAL CASE FILINGS | HUSSEIN & WEBBER, PL


The following is a sample Florida Motion to Dismiss Based Upon Statute of Limitations, filed in a Florida criminal case involving a charge of worthless, or bad check. The State had filed criminal charges and, at the State Attorney’s request, a capias was issued for the defendant’s arrest. Despite over ten years elapsing from the date of filing an information and the issuance of a warrant, the State of Florida failed to exercise due diligence in attempting to locate the defendant to serve the warrant. These materials are provided for general reference only, and are not intended as a substitute for legal advice by a qualified criminal defense lawyer in Jacksonville.


MOTION TO DISMISS


Defendant, STATUTE LIMITATION, by and through the undersigned attorney and pursuant to Rule 3.190(b), Florida Rules of Criminal Procedure, and Section 775.15, Florida Statutes (2012), respectfully moves this Honorable Court to dismiss the above-referenced cause because the statute of limitations has expired.  In support thereof, Defendant states as follows:

1. The Defendant has been charged with one count of Worthless Check (More than $150.00). The Information at issue was filed on April 5, 2000.  

2. On or about April 5, 2000, a Capias was issued for Defendant’s arrest.  

3. The applicable statute of limitation, Section 775.15(2)(b), Florida Statutes, requires the State of Florida to “commence” prosecution of Defendant within three years of the alleged offense being committed.  

4. Section 775.15(5), Florida Statutes (2012), provides that 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.” § 775.15(5), Fla. Stat. (2012).  

5. Thus, the filing of an information and the issuance of a capias do not, alone, commence prosecution; rather, the capias must also be executed without unreasonable delay. See State v. Shamy, 759 So. 2d 728, 729 (Fla. 4th DCA 2000); Brown v. State, 674 So. 2d 738, 741 (Fla. 2d DCA 1995).  

6. The Florida Supreme Court has held that the word “executed” in Section 775.15(5) means served upon the defendant.  State v. Fields, 505 So. 2d 1336, 1337 (Fla. 1987).

7. The statute of limitations begins to run the day after the offense is alleged to have been committed.  Brown v. State, 510 So. 2d 361, 363 (Fla. 3d DCA).

8. The Fifth District Court of Appeal of Florida has held that “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 Defendant before the court within its statutory limit.”  Wells v. State, 571 So. 2d 563, 564 (Fla. 5th DCA 1990).

9. A single attempt at service of process is not sufficient.  Fleming v. State, 524 So. 2d 1146 (Fla. 1st DCA 1988).

10. The burden is on the State to demonstrate that the delay in execution of process was not unreasonable. Brown, 674 So. 2d at 741 (citing State v. King, 282 So. 2d 162 (Fla. 1973)).

11. Overall, courts must determine on a case-by-case basis whether the state was diligent in its efforts to execute a Capias in order to bring a defendant before the court within the statutory limit.  Shamy, 759 So. 2d at 729.   

12. In the instant case, nearly thirteen years have elapsed since the State of Florida filed the above-described Information against Defendant.  

13. The Capias issued on April 5, 2000 was never served on Defendant and the applicable statute of limitations period has long since expired.   

14. The delays in executing process upon Defendant were unreasonable.  

15.  At all material times, Defendant has resided in Northeast Florida and has maintained reasonably ascertainable place of abode or work within the State  

16. Defendant has not evaded prosecution and has, at all times, lived under her legal name with an address on file with the Department of Highway Safety and Motor Vehicles.  

17. The State of Florida can not establish that it exercised appropriate diligence in its efforts to execute the Capias in order to bring Defendant before the court within the applicable statutory period.

18. As a result of the foregoing, the undersigned respectfully submits that this Court is now without jurisdiction to hear the above-captioned case.

WHEREFORE, Defendant moves this Honorable Court to dismiss this cause and discharge Defendant from further prosecution.