The Florida and U.S. Constitutions and other state and federal laws protect people suspected or accused of criminal acts from improper behavior by police and prosecutors. People have the right not to incriminate themselves, the right to be free from unreasonable searches and seizures, and the right to a speedy trial. Additionally, criminal cases may be subject to statutes of limitations. A failure of the prosecution to bring the case within the applicable statute of limitations will result in the case being dismissed. Such was the case in Norton v. State, recently decided by the Second District.
In Norton, the State filed an information against the defendant for a violation of §893.13(7)(a)(8)(c), Florida Statutes. The “doctor-shopping” statute, as it is known, prohibits a person from withholding information about receiving or being prescribed a controlled substance in the last 30 days when that person is seeking a controlled substance or prescription for one with a similar therapeutic use from another health care provider. A violation of this statute is a third-degree felony.
The State alleged the offense occurred between June 2009 and March 2010. The State filed the information in late July 2010 and issued a capias on that same day. The defendant was not arrested until July 30, 2014.
The defendant moved to dismiss the information, arguing that the State had not commenced the prosecution within the statute of limitations. Pursuant to §775.15, Florida Statutes, the statute of limitations for a third-degree felony is three years.
At the hearing, the custodian of records testified on behalf of the State based on the records kept by the Sheriff’s Office. He stated that the warrant for the defendant’s arrest was issued on August 9, 2010 and that it was entered into the state and national systems on August 16, 2010. A deputy tried to serve her the next day at her mother’s home but was told that she had not lived there for several years. He further stated that the warrant was posted on local and state law enforcement websites after 30 days.
On October 11, 2011, there was another attempt to serve the defendant at her mother’s home, but she was not present. A deputy checked the Sheriff’s Office database and the driver’s license and vehicle registration database and found a different address. That evening, a deputy tried to reach the defendant there but was unsuccessful. The next morning, someone tried again but found the place vacant. There were no other attempts noted until the defendant’s arrest in 2014. There was nothing in the records to suggest that anyone ever looked in the phone book, an online phone directory, property tax records, social media, or a number of other resources.
The trial court denied the motion to dismiss, finding that the Sheriff’s Office had made “diligent efforts” and engaged in a “diligent search” to find the defendant. The trial court also found that the defendant had been apprehended within the statute of limitations.
Since the State had neither arrested the defendant nor served her with a summons at the time it filed the information, it was required to commence prosecution in a timely manner. Section 775.15 states that a prosecution on a charge for which the defendant has not been arrested or served a summons commences when the indictment or information is filed, if the capias “is executed without unreasonable delay.” A court may consider a failure to execute the capias reasonable if the State is unable to locate the defendant after a diligent search . Furthermore, a failure to execute a capias on or extradite a defendant who is out of the state is not considered an unreasonable delay.
There was no evidence here that the defendant had been outside Florida, so the only issue was whether the State’s efforts constituted a diligent search. Case law holds that the prosecution must show that the State checked obvious sources for information regarding the defendant’s whereabouts. Case law has found that the phone book, voter registration records, utility records, and other resources are “obvious sources,” although the courts acknowledge that what constitutes a diligent search must be determined on a case by case basis.
The district court found that the trial court had erred in determining that the State had established that it had conducted a diligent search for the defendant. After being told the defendant no longer lived at her mother’s residence, the State posted the warrant on the websites and then did nothing for 18 months. At that point, they went back to the mother’s residence. Only when they were told for a second time that the defendant was not there did someone from the Sheriff’s Office seek and find another address through driver’s license and vehicle registration records.
The district court stated that the State’s argument overlooked the responsibility to diligently search obvious sources of public information. Furthermore, there was no evidence anyone ever engaged in a basic internet search for the defendant. The court also noted that the state did not present any evidence that searching additional resources would have been futile. The district court called the State’s efforts “minimal” and found that the trial court erred in holding that the State had shown that it had made a diligent search that was sufficient to excuse the delay. The district court granted the defendant’s petition.
A failure to prosecute a case within the statute of limitations bars the claim. The South Florida criminal defense attorneys at Anidjar & Levine have a thorough knowledge of Florida criminal law, including statutes of limitations. If you have been charged with a crime, call us at (800) 747-3733, or submit an online “Contact Us” form.
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