Statute of Limitations


SHORSTEIN, LASNETSKI, & GIHON
will protect your right to a
Statute of Limitations
defense.

The Statute of Limitations provides an affirmative defense to criminal charges that are brought years after the offense.  Because it is an affirmative defense, the State can prosecute you for a crime even if the Statute of Limitations has run, if you don't raise it through a Motion to Dismiss.  The Statute of Limitations is also not cut and dry.  There are caveats that allow the government to extend the period of time that the State can bring charges.  Give us a call to discuss whether you have a viable Statute of Limitations defense. 
What is the Statute of Limitations?

The Statute of Limitations is defined in Florida Statute Section 775.15.  For each degree of crime, it provides a finite time period in which the State must begin a criminal prosecution. If the State fails to bring prosecution within that time period, if the period has not been tolled, and there are no other exceptions, the judge must dismiss the charges.  This defense is often used when there is an old warrant or capias outstanding and law enforcement has not made reasonable efforts to serve that warrant or capias on you.  The theory behind the Statute of Limitations is that it is not fair for citizens to have to defend themselves against criminal charges years after the fact when memories may have faded, evidence lost, and the ability to provide a defense is diminished.

What are the general time periods when the State must begin a prosecution?

For most offenses, the prosecution for the offense must be commenced within the following time frame starting from the commission of the offense:

Capital Felony
Anytime

Life Felony
Anytime

Felony resulting in Death
Anytime

First Degree Felony
Within 4 years

Second Degree Felony
Within 3 years

Third Degree Felony
Within 3 years

First Degree Misdemeanor
Within 2 years

Second Degree Misdemeanor
Within 1 year

The following are some exceptions to the above time frames:

Perjury in an Official Proceeding Relating to Capital Felony
Any time

Felony Involving Destructive Device and Injury
Within 10 years

Felony Involving Securities Transactions or Medicaid Provider Fraud
Within 5 years

Felony Involving Environmental Control
Within 5 years

Abuse or Exploitation of an Elderly Person or Disabled Adult
Within 5 years

Worker's Comp Fraud or False and Fraudulent Insurance Claims
Within 5 years

Video Voyeurism
Within 1 year of Victim's actual knowledge of recording

Human Trafficking
Any time
(except for offense committed on or before October 1, 2014 that would have been barred under the general statute of limitations rules)

Sex Offenses
See below

When is an offense committed?

An offense is committed either:
  • when every element has occurred, or
  • if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the defendant's complicity therein is terminated.

Time starts to run on the day after the offense is committed. 


When does a prosecution start?

If you have been arrested or served with a summons,
prosecution starts when the indictment, information or other charging document is filed.

If you have not been arrested or served with a summons,

prosecution starts when an indictment or information is filed,
  • provided the capias, summons or other process issued on such indictment or information is executed without unreasonable delay.

When is the delay reasonable or unreasonable?

In determining what is reasonable, inability to locate the defendant after diligent search or the defendant's absence from the state shall be considered. 


What if I wasn't living in Florida?

The period of limitation does not run during any time when:
  •  you were continuously absent form the state, or
  • had no reasonably ascertainable place of abode or work within the state. 
So, if you lived out of state, the period of time does not run, even if law enforcement could have easily found you.  The time period also does not run during any time period if law enforcement could not easily locate you within Florida.  Think of it as if time freezes during these time periods. 

However, even if time is frozen because you lived outside of Florida or your whereabouts weren't easily attainable inside Florida, the period of time can only be extended for 3 years. 

What if I was arrested on a warrant out of state and they let me go because Florida didn't want to extradite me?

The failure to execute process on or extradite a defendant in another state who has been charged by information or indictment with a crime in this state shall not constitute unreasonable delay. 

So, if an information was filed in your case and a capias was issued for your arrest, but you lived out of state, it is not unreasonable delay if Florida decided not to extradite you. 

What if the offense wasn't discovered until years later?  For example, if I am charged with embezzling money years ago, but they just found out about it?

For certain offenses, the period of time that you can be prosecuted is tied to when the offense was discovered, not when it was committed.

For most offenses, even if the normal statute of limitations period has run, you can still be prosecuted for:

  • any offense involving fraud or breach of a fiduciary obligation,
    • prosecution can brought within 1 year after discovery of the offense
    • but can only extend the period up to 3 years past the normal statutory period
  • any offense involving misconduct of a public officer or employee
    • prosecution can be brought within 2 years from the time they leave public office or employment

What if the victim of a sex offense was a child when the offense occurred or if he or she reported it but I wasn't prosecuted until years later?

The statutory period listed above does not begin to run until the listed victim turns 18 or the offense is reported to law enforcement or other governmental agency, whichever is first. 

If the offense is a first or second degree felony sexual battery and it is reported within 72 hours after its commission, the prosecution may commence at anytime and there is not statute of limitations bar. However, if the offense occurred on or before December 31, 1984 and is barred under the general statute of limitations provisions listed above, then this provision would not apply and the prosecution would be barred.

If the offense was a sexual battery and the listed victim was under 16 at the time of the offense, the prosecution may commence at anytime and there is not statute of limitations bar. However, if the offense occurred on or before July 1, 2010 and is barred under the general statute of limitations provisions listed above, then this provision would not apply and the prosecution would be barred.

If the offense was first or second degree sexual battery and the listed victim was 18 or older at the time of the offense and the offense was reported to law enforcement within 72 hours of the offense, the prosecution may commence at anytime and there is not statute of limitations bar.

If the offense was Lewd or Lascivious Battery or Molestation and the victim was under 16 at the time of the offense, the prosecution may commence at anytime, unless the offender is less than 18 and is no more than 4 years older than the victim.  (This applies only if the offense is not otherwise barred from prosecution on or before October 1st, 2014). 

What if the statute of limitations has run and I was arrested based on DNA?

For the following offenses, the prosecution must be commenced within the following time period after your identity is known based on DNA, or within 1 year after your identity should have been established with the exercise of due diligence on the part of law enforcement:

Within 1 year
(For offenses not otherwise barred between 7/1/2004 and 6/30/2006)

Sexual Battery

Lewd or Lascivious Offense

Anytime
(For offenses not otherwise barred on or after July 1, 2006)


Aggravated Battery

Felony Battery

Kidnapping

False Imprisonment

Sexual Battery

Lewd or Lascivious Offense

Burglary

Robbery

Carjacking

Aggravated Child Abuse

Example - John gets in a fight with Bob on January 1st, 2013.  An arrest warrant is issued for his arrest on January 15th, 2013.  John, who has never changed residences, isn't arrested until January 1st, 2016.  John can file a Motion to Dismiss the Battery charge because it is a First Degree Misdemeanor with a statute of limitations period of two years and prosecution was not commenced for 3 years.


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