NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
STATE OF FLORIDA, )
)
Appellant, )
)
v. ) Case No. 2D13-4974
)
AMRIESH SOEBHAG, )
)
Appellee. )
________________________________ )
Opinion filed April 29, 2015.
Appeal from the Circuit Court for
Polk County; Michael E. Raiden,
Judge.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Wendy Buffington,
Assistant Attorney General, Tampa,
for Appellant.
Ronald N. Toward, Bartow, for
Appellee.
NORTHCUTT, Judge.
The State appeals the dismissal of an information charging Amriesh
Soebhag with eight crimes. Contrary to the circuit court's conclusion, the statute of
limitations has been tolled throughout Soebhag’s absence from Florida since 2004.
Accordingly, we reverse.
Soebhag has never been arrested in this case. The State filed an
information and issued an arrest warrant in 2004. But also that year, Soebhag left the
United States and moved to the Netherlands. The police learned that he had left the
country and took no further action. Soebhag has not returned. In 2013, his attorney
filed a motion to dismiss and argued that the prosecution was barred by the statute of
limitations. After taking evidence, the circuit court agreed. We review this order de
novo, applying the statute of limitations in effect at the time of the alleged crimes. See
State v. Perez, 952 So. 2d 611, 612 (Fla. 2d DCA 2007).
Soebhag was charged with lewd molestation, two counts of lewd conduct,
two counts of lewd or lascivious exhibition, showing obscene material to a minor, and
two counts of contributing to the delinquency of a child. In sum, he was accused of five
second-degree felonies, one third-degree felony, and two misdemeanors. Section
775.15(2), Florida Statutes (2004), provides that a prosecution for second- or third-
degree felonies must be commenced within three years and for misdemeanors within
two years "[e]xcept as otherwise provided in this section." When, as here, the accused
has not previously been arrested on the charges, a prosecution is commenced upon the
filing of an indictment or information, "provided the capias, summons, or other process
issued on such indictment or information is executed without unreasonable delay."
§ 775.15(5)(b). Without dispute, the information against Soebhag was filed within the
applicable limitations periods. The question is whether during the ensuing decade there
has been an unreasonable delay in executing process or whether the State's time to act
has been tolled.
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The statute answers this question. "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 an unreasonable delay."
§ 775.15(5)(b). On its face, this last sentence of subsection (5)(b) sets forth a bright-
line rule that requires us to reverse.
We disagree with Soebhag’s assertion that in his case the rule is altered
by language in the next subsection of the statute. Section 775.15(6) provides as
follows:
The period of 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. This provision shall not extend the period of
limitation otherwise applicable by more than 3 years, but
shall not be construed to limit the prosecution of a defendant
who has been timely charged by indictment or information or
other charging document and who has not been arrested
due to his or her absence from this state or has not been
extradited for prosecution from another state.
Based on the first half of subsection (6), Soebhag maintains that the limitations period
can never be extended by more than three years. But his argument ignores the
express language in the second half of this subsection: the three-year cap does not
apply to a defendant who has been timely charged but who has not been arrested due
to either his absence from Florida or the State's failure to extradite him. As we held in
Perez, under this version of the statute, the time was tolled "for as long as [the
defendant] remained absent from Florida" and the State was relieved "from any
obligation to attempt to extradite" the defendant. 952 So. 2d at 613.
The circuit court was mistaken to rely on another case from this court,
also involving a defendant named Perez. In State v. Perez, 72 So. 3d 306 (Fla. 2d
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DCA 2011), we addressed a specific statute of limitations applicable to grand theft
contained in chapter 812, Florida Statutes (2000). Section 812.035(10) provided, in
pertinent part, that "the period of limitation does not run during any time when the
defendant is continuously absent from the state or is without a reasonably
ascertainable place of abode or work within the state, but in no case shall this extend
the period of limitation otherwise applicable by more than 1 year." Unlike the general
limitations statute, this one did not include language that excluded from the limitations
cap defendants who had been charged but not arrested due to their absence from
Florida or that relieved the State of any obligation to seek extradition. Compare
§ 775.15(5)(b), (6), Fla. Stat. (1999), with § 812.035(10), Fla. Stat. (2000). Applying
the principle that specific statutes must control over general ones, we held that
subsections (5) and (6) of section 775.15 must "yield to section 812.035(10), and the
State was limited to a maximum limitations period of six years." Perez, 72 So. 3d at
308. For obvious reasons, that decision has no bearing on the instant case.
Neither is Soebhag aided by Netherly v. State, 804 So. 2d 433 (Fla. 2d
DCA 2001). That case involved the 1991 statute of limitations, which predated the
amendment that added the statutory language discussed above. See ch. 97-90, § 1,
at 514, Laws of Fla. (adding the pertinent provisions to section 775.15(5) and (6)). For
this reason, we are not in conflict with the First District. Cf. Robinson v. State, 153 So.
3d 313 (Fla. 1st DCA 2014) (holding that statute of limitations was tolled due to
defendant's continuous absence from Florida; suggesting conflict with Netherly and
Perez, 72 So. 3d 306).
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We reverse the order dismissing the information against Soebhag and
we remand for further proceedings.
Reversed and remanded.
CRENSHAW and SLEET, JJ., Concur.
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