STATE OF FLORIDA, EX REL. ALLEN QUINCY WELCH; PETITIONER,
v.
THE CIRCUIT COURT IN AND FOR ESCAMBIA COUNTY, FLORIDA, AND THE HONORABLE JOHN T. PARNHAM, ONE OF THE JUDGES OF SUCH COURT, RESPONDENT
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Florida petitioner Welch seeks a writ of prohibition to bar his trial for armed robbery on statute of limitations grounds. The court holds that under the express definition of 'commencement' in Florida Statutes section 775.15, prosecution commences only when an indictment or information is filed, not when an arrest warrant is issued, and therefore the seven-year limitation period for first-degree felonies had expired before charges were filed.
The court held that prosecution is commenced only when an indictment or information is filed, as expressly defined in section 775.15(5), not by the issuance of an arrest warrant. The prior holding in Sturdivan v. State, which permitted commencement by warrant under the predecessor statute lacking an express definition, does not apply to crimes committed after the effective date of section 775.15. Therefore, the trial court erred in denying Welch's motion to dismiss.
[1] Prosecution for a first-degree felony must be commenced within four years after the offense is committed, unless an exception applies.
[2] For purposes of the statute of limitations, prosecution is commenced when an indictment or information is filed.
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Join FLexlaw to unlock all legal intelligence“A prosecution is commenced when either an indictment or information is filed”
Establishes the express statutory definition of commencement under section 775.15(5)
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Join FLexlaw to unlock all legal intelligenceWelch was charged with armed robbery, a first-degree felony, occurring on September 8, 1977. An arrest warrant was issued within days of the crime but…
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PER CURIAM.
Petitioner seeks to prohibit his trial on charges of armed robbery alleging that the statute of limitations, section 775.15, Florida Statutes (1977), has expired. Section 775.15 which was in effect at the time of the charged offense provides in pertinent part:
775.15 Time limitations.—
(1) A prosecution for a capital or life felony may be commenced at any time....
(2) Except as otherwise provided in this section, prosecutions for other offenses are subject to the following periods of limitation:
(а) A prosecution for a felony of the first degree must be commenced within 4 years after it is committed.
(5) A prosecution is commenced when either an indictment or information is filed....
(б) The period of time limitation does not run during any time when the defendant is continuously absent from the state or has no reasonably ascertainable place of abode or work within the state, but in no case shall this provision extend the period of limitation otherwise applicable by more than 3 years.
The offense with which petitioner is charged is a first degree felony. Thus, under the foregoing provisions, the maximum period of time which may elapse between the date of the crime and the commencement of prosecution is seven years. Here, the crime occurred on September 8, 1977. Although a warrant for petitioner’s arrest was issued within a few days, the warrant was never executed and no further activity occurred until after seven years had elapsed. That is, no indictment or information was filed until after the limitation period had expired.
Relying on Sturdivan v. State, 419 So. 2d 300 (Fla.1982), respondent argues that the issuance of the arrest warrant in 1977 commenced prosecution for purposes of the statute of limitations. In Sturdivan, however, the crime giving rise to the appeal occurred at a time when a previous statute of limitations, section 932.465, Fla.Stat. (1971), was in effect. Section 932.465 did not include a definition of the term “commencement” and under that statute, the court held that prosecution could be commenced by the issuance of a warrant. However, due to the express and unambiguous definition of the term “commencement” in the current statute, the rationale of Sturdivan is not applicable to prosecutions for crimes committed after the effective date of section 775.15. Therefore, we find that the trial court improperly denied petitioner’s motion to dismiss.
This cause was initiated in this court by the filing of a document entitled “Rule Nisi,” a term unknown to the modern rules of appellate procedure. This document was accompanied by a “Suggestion” which embodied the essential requirements of a petition for writ of prohibition. Pursuant to Rule 9.040(c), we have treated the pleading as a petition for writ of prohibition under Rule 9.100. Typically, resort to rule 9.040 is necessary to preserve the rights of pro se appellants. We expect members of The Florida Bar to be familiar with the procedural rules of the court prior to their appearance on behalf of clients. We also find unacceptable counsel’s puerile comments included in his “Reply to Response.” We warn counsel that failure to comply with the Florida Rules of Appellate Procedure in the future may result in the imposition, of sanctions. See Winstead v. Adams, 363 So. 2d 807 (Fla. 1st DCA 1978).
Although we find the trial court erred in denying petitioner’s motion to dismiss, we withhold formal issuance of the writ and remand with instructions that the motion to dismiss be reconsidered in accordance with this opinion.
THOMPSON, ZEHMER, and BAR-FIELD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Fields, 505 So. 2d 1336 (Fla. 1987)…f a late filed indictment rather than the timeliness of the execution of the arrest warrant. Hence, we hold that Sturdivan cannot be considered as having interpreted section 775.-15(5). Accord State ex rel. Welch v. Circuit Court of Escambia County, 487 So. 2d 65 (Fla. 1st DCA), review denied, 492 So. 2d 1330 (Fla.1986). Likewise, we agree with the district court of appeal that the word “executed” in section 775.15(5) can only mean service upon the defendant. Since the record supports the trial judge’s find…
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State v. Watkins, 685 So. 2d 1322 (Fla. 2d DCA 1996)…inition of this term and it does not include the act of arresting a person and notifying him of the charges that the state may or may not file against him at a later date. State ex rel. Allen Quincy Welch v. Circuit Court In and For Escambia County, 487 So. 2d 65 (Fla. 1st DCA), rev. denied, 492 So. 2d 1330 (Fla.1986). See also State v. Fields, 505 So. 2d 1336 (Fla. 1987). Time limitations upon criminal prosecutions are solely creatures of statute and are to be liberally construed in favor of the accused. Br…
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State v. Fields, 502 So. 2d 5 (Fla. 4th DCA 1986)…cution. Neither of these cases cites or appears to consider the impact of section 775.-15(5), Florida Statutes, and that is why we come to the opposite result. Another recent case, State ex rel. Welch v. The Circuit Court in and for Escambia County, 487 So. 2d 65 (Fla. 1st DCA 1986), clearly supports our position. We regret that neither party filed a notice of supplementary authority of this obviously pertinent decision from our sister court. AFFIRMED. HERSEY, C.J., and WALDEN, J„ concur.…
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- Sturdivan v. State, 419 So. 2d 300 (Fla. 1982)
- Winstead v. Adams, 363 So. 2d 807 (Fla. 1st DCA 1978)