OTHO ELDRIDGE THOMAS, PETITIONER,
v.
HONORABLE WILLIAM L. WALKER, CIRCUIT JUDGE, RESPONDENT
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The court grants a writ of prohibition preventing further prosecution of grand larceny charges where the statute of limitations has expired. An information was filed within two years of the alleged 1974 offenses, but after dismissal in 1978, no new charge was filed within the required three-month extension period, and the state neither appealed the dismissal nor refiled the charges.
The statute of limitations has run. Although the initial information was timely filed, the failure to refile within three months of the 1978 dismissal extinguished the state's right to prosecute. Further prosecution is prohibited.
[1] A statute of limitations for criminal offenses is extended by three months from the date of dismissal or setting aside if an indictment, information, or affidavit was fil…
[2] A state cannot revive a prosecution barred by the statute of limitations by arguing that a prior dismissal was erroneous if the state did not oppose the dismissal or appe…
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Join FLexlaw to unlock all legal intelligence“Prosecution for offenses not punishable by death must be commenced within two years after commission, but if an indictment, information, or affidavit has been filed within two years after commission of the offense and the indictment, information, or affidavit is dismissed or set aside because of a defect in its content or form after the two year period has elapsed, the period for commencing prosecution shall be extended three months from the time the indictment, information, or affidavit is dismissed or set aside.”
The controlling statute of limitations provision establishing the three-month extension after dismissal
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Join FLexlaw to unlock all legal intelligencePetitioner was charged with grand larceny for alleged 1974 incidents via information filed March 26, 1975. The charges were dismissed in 1978. On Sept…
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PER CURIAM.
This petition for writ of prohibition is brought to review an order denying a mo tion to dismiss a capias and to restrain further prosecution of petitioner for charges of grand larceny stemming from an information filed against petitioner on March 26, 1975. The charges were dismissed in 1978. Thereafter no further proceedings ensued until September 12, 1980 when the state moved to reinstate the capias. On that date the court entered an order reinstating the capias. Pursuant to the reinstated capias petitioner was arrested in 1983. He filed a motion to dismiss alleging that the Statute of Limitations had run on the 1974 incidents giving rise to the charges. The motion to dismiss was denied.
It is undisputed that the applicable Statute of Limitations is Section 932.465, Florida Statutes (1973) which was in effect at the time of the alleged offenses. Subsection (2) reads as follows:
Prosecution for offenses not punishable by death must be commenced within two years after commission, but if an indictment, information, or affidavit has been filed within two years after commission of the offense and the indictment, information, or affidavit is dismissed or set aside because of a defect in its content or form after the two year period has elapsed, the period for commencing prosecution shall be extended three months from the time the indictment, information, or affidavit is dismissed or set aside. (Emphasis supplied)
Although the state filed its first information within two years after commission of the alleged felonies, that information was dismissed and no new charge was filed within the following three months.
The state now argues that the dismissal in 1978 was error. However, the state does not allege that it opposed the dismissal and it is undisputed that it did not appeal the dismissal. The state’s argument that petitioner was unavailable for most of the time period involved might be persuasive to us if this were a speedy trial case. Here, however, the state’s remedy was to appeal the dismissal or possibly refile within the three-month period. It failed to do either. Under the circumstances, we find that the Statute of Limitations for the various counts of grand larceny alleged to have occurred in 1974 has run. We therefore grant the petition and prohibit further prosecution on those charges.
Writ of prohibition granted.
SCHEB, A.C.J., and DANAHY and CAMPBELL, JJ., concur.