Third District Court of Appeal
State of Florida
Opinion filed December 21, 2016.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D14-1635
Lower Tribunal No. 11-10772
________________
Earvin Smith,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Ariana Fajardo
Orshan, Judge.
Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public
Defender, for appellant.
Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant
Attorney General, for appellee.
Before SUAREZ, C.J., and WELLS, SHEPHERD, ROTHENBERG, LAGOA,
SALTER, EMAS, FERNANDEZ, LOGUE and SCALES, JJ.
PER CURIAM.
ON HEARING EN BANC
Appellant, Earvin Smith (“Smith”), appeals from his convictions and
sentences for armed sexual battery and armed burglary. On the court’s own
motion, and pursuant to rule 9.331(a) and (c), Florida Rule of Appellate Procedure,
we have determined it is necessary to proceed en banc in this case in order to
maintain uniformity in this court’s decisions.1
For the reasons that follow, we affirm the conviction and sentence for armed
sexual battery, but reverse the conviction and sentence for armed burglary. We
further clarify the case law within our district regarding whether the statute of
limitations can be raised for the first time on appeal as to the crime charged in the
information, and certify to the Florida Supreme Court a question of great public
importance.
I. FACTS AND PROCEDURAL HISTORY
Smith was arrested and charged with three counts of armed kidnapping,
three counts of aggravated assault with a firearm, and one count each of attempted
armed robbery, armed burglary, and armed sexual battery. The crimes charged
1 Florida Rule of Appellate Procedure 9.331(a) authorizes a district court of appeal
to order that a proceeding pending before the court be determined en banc if the
case is of exceptional importance or if necessary to maintain uniformity in the
court’s decision. This case is heard en banc so that this court may clarify the law
within this district and, in doing so, recede from our decisions in Fondon v. State,
581 So. 2d 188 (Fla. 3d DCA 1991) and Harper v. State, 43 So. 3d 174 (Fla. 3d
DCA 2010), to the extent that they conflict with our decision in this case. We also
certify to the Florida Supreme Court a question of great public importance.
2
took place in September of 1990; however, Smith was not arrested or charged until
2011, when a DNA test of evidence collected by the Rape Treatment Center at the
time of the offense yielded a match to Smith.2
In 1990 (the time of the crimes), Smith was sixteen years old. By the time
of his arrest in May of 2011, Smith was thirty-six years old. Following his arrest,
the State filed a felony information in adult court, charging him with the above-
described crimes. At arraignment, Smith’s appointed counsel entered a plea of not
guilty, demanded discovery, and further demanded a trial by jury.
During the pretrial stages, Smith moved to dismiss several of the charges as
barred by the statute of limitations. Specifically, Smith moved to dismiss the three
counts of aggravated assault with a firearm.3 After a hearing, the State agreed with
2 According to E.H., the victim, on or about September 15, 1990, she was asleep in
her house when an armed man wearing a ski mask forcibly raped her, after
threatening to shoot her and her children. Once the perpetrator left the house, E.H.
called the police and was transported to the Rape Treatment Center, where a rape
test kit was utilized and DNA of the perpetrator was recovered. However, the
perpetrator was not identified or apprehended at that time. More than twenty years
later, Smith became a suspect after the Miami-Dade crime lab reported a CODIS
match between Smith’s DNA and the DNA sample obtained in 1990. Subsequent
lab testing confirmed the DNA match. At trial, Smith did not contest the fact that
he had sex with E.H., but rather contended that he did not break into the house or
threaten E.H. or the children, that he was not armed, and that E.H. consented to
having sex in exchange for Smith providing her with drugs.
3 Aggravated assault is a third-degree felony. § 784.021(2), Fla. Stat. (1990).
However, the allegation of use of a firearm reclassifies the offense to a second-
degree felony, see section 775.087(1)(d), Florida Statutes (1990), and those
charges were therefore subject to a three-year statute of limitations. See §
775.15(2)(b), Fla. Stat. (1990).
3
Smith’s motion and nolle prossed those three counts. At that time, the trial court
inquired whether the defense was seeking dismissal of any other counts based upon
the statute of limitations, and defense counsel indicated they were not seeking
dismissal of any other counts, and that all of the remaining counts were life
felonies.4
Nevertheless, at trial following presentation of the State’s case, Smith
moved for dismissal of the attempted armed robbery charge, based upon the statute
of limitations. The attempted armed robbery charge was a second-degree felony,5
and was therefore subject to a three-year statute of limitations. See § 775.15(2)(b),
Fla. Stat. (1990). The trial court granted the motion, and dismissed the attempted
armed robbery charge, leaving for the jury’s consideration the charges of armed
burglary and armed sexual battery. The jury found Smith guilty of both charges.
The court imposed two concurrent, twenty-two year prison sentences with a three-
year minimum mandatory for actual possession of a firearm.
As it turned out, the armed burglary, as charged in the information, was not
a life felony (which has no statute of limitations) but a first-degree felony
4 Prior to the commencement of the trial, the State also nolle prossed the three
armed kidnapping counts, and trial commenced on the three remaining counts—
attempted armed robbery, armed burglary and armed sexual battery.
5 Armed robbery with a firearm or deadly weapon is a first-degree felony
punishable by life. See § 812.13(2)(a), Fla. Stat. (1990). Attempted armed
robbery with a firearm is a second-degree felony, § 777.04(4)(b), Fla. Stat. (1990),
and subject to a three-year statute of limitations.
4
punishable by life (which is subject to a four-year statute of limitations).6
However, Smith did not file a motion to dismiss the armed burglary or otherwise
raise a statute-of-limitations challenge to that count in the trial court.
On appeal, Smith raises two claims: 1) the State was required to prosecute
him as a juvenile pursuant to the Florida Juvenile Justice Act, Chapter 39, Florida
Statutes (1990) because he was sixteen years old at the time of the offenses; and 2)
the conviction and sentence for the armed burglary must be reversed as barred by
the statute of limitations, and may be raised for the first time on appeal as
fundamental error. We review these claims de novo.
II. ANALYSIS
A. Was the State required to prosecute Smith as a juvenile in accordance
with the 1990 version of Chapter 39, Florida Statutes?
Smith argues that he should have been originally charged and tried as a
juvenile because he was sixteen years old at the time of the offense. We note,
preliminarily, that any such right is statutory and not of constitutional dimension.
Article I, Section 15(b) of the Florida Constitution provides:
When authorized by law, a child as therein defined may be charged
with a violation of law as an act of delinquency instead of crime and
tried without a jury or other requirements applicable to criminal cases.
6As discussed infra, the State could have charged the armed burglary count in such
a way that it would have constituted a life felony, not subject to any limitations
period. See § 775.15(1), Fla. Stat. (1990) (providing that “[a] prosecution for a
capital felony, a life felony, or a felony that resulted in a death may be commenced
at any time.”)
5
Any child so charged shall, upon demand made as provided by law
before a trial in a juvenile proceeding, be tried in an appropriate court
as an adult. A child found delinquent shall be disciplined as provided
by law.
Under Florida law, juveniles are granted “the right to be treated differently
from adults,” Troutman v. State, 630 So. 2d 528, 531 (Fla. 1993)7 (quoting State v.
Rhoden, 448 So. 2d 1013, 1016 (Fla. 1984)), but the right is granted “only to the
extent provided by our legislature.” State v. Cain, 381 So. 2d 1361, 1363 (Fla.
1980). See also State v. G.D.M., 394 So. 2d 1017, 1018 (Fla. 1981); Johnson v.
State, 314 So. 2d 573 (Fla. 1975).
In Johnson, the defendant challenged the constitutionality of a portion of
Chapter 39, contending that the statute violated the Equal Protection and Due
Process clauses of the United States and Florida Constitutions because it permitted
some children to be indicted and prosecuted as adults while allowing other children
(who are not indicted but face similar charges via delinquency petition) to be
prosecuted in juvenile proceedings. In rejecting his claim, the Court stated:
It should be clear that a young person charged with violation of
criminal law does not have an absolute right to be treated as a
‘delinquent child’ solely because of age. The constitutional basis for
the juvenile court system in Florida allows, but does not require, that a
‘child’ who has committed a violation of law be charged with an act
of delinquency instead of a crime.
Johnson, 314 So. 2d at 576.
7 Troutman was superseded by statute as stated in Ritchie v. State, 670 So. 2d 924
(Fla. 1996).
6
Looking to the pertinent provisions of Chapter 39, we conclude that Smith’s
contention is without merit. On September 15, 1990—the date when the offenses
were committed—Smith was sixteen years old. Section 39.04(3)(e), Florida
Statutes (1989),8 provided:
(e) The state attorney shall in all cases have the right to take action,
regardless of the action or lack of action of the intake officer, and
shall determine the action which is in the best interest of the public
and the child. The state attorney may:
....
4. With respect to any child who at the time of commission of the
alleged offense was 16 or 17 years of age, file an information when in
his judgment and discretion the public interest requires that adult
sanctions be considered or imposed.
Based upon the plain language of this provision, and in light of the fact that
Smith was sixteen years old at the time of the offenses, the State Attorney was
authorized “to file an information when in [her] judgment and discretion the public
interest requires that adult sanctions be considered and imposed.” § 39.04(3)(e).
Given Smith’s age at the time of the offenses, his reliance on State v.
Griffith, 675 So. 2d 911, 912 (Fla. 1996) is misplaced. In that case, Griffith was
charged (at age twenty-two) with felonies committed when he was between the
ages of fifteen and seventeen. On appeal following his conviction, Griffith argued
that, because he was under the age of sixteen at the time of the offenses, the
8The Florida Legislature repealed this subsection, effective October 1, 1990. See
Ch. 90-208, § 17, Laws of Florida (1990).
7
proceedings should have been commenced in accordance with chapter 39, at which
time the juvenile court judge could have decided whether Griffith should be
transferred to adult court.
The Florida Supreme Court agreed, but its analysis (and the applicability of
section 39.04(3)(e)) was premised upon the fact that Griffith was less than sixteen
years old when he committed the crimes because the information alleged a range
of dates (covering a two-year period), rather than a specific date when the offenses
were committed. The court nevertheless affirmed the convictions because Griffith
failed to object in the trial court, waiving any right to assert the argument on
appeal.
Because Smith was concededly sixteen years old at the time of the offenses,
Griffith is inapplicable and we need not reach the issue of whether Smith waived
any right to juvenile proceedings by failing to raise the issue until after jeopardy
had attached and the State had rested its case before the jury.9
B. Can Smith assert, for the first time on appeal, that the crime for which he
was charged and convicted is barred by the statute of limitations?
9 The State argues additionally that Smith waived the issue at arraignment by
affirmatively requesting a jury trial, a right to which he is not entitled if proceeding
pursuant to Chapter 39. See § 39.09(1)(b), Fla. Stat. (1989) (providing that
juvenile adjudicatory hearings are conducted without a jury).
8
This issue involves only the conviction and sentence for the crime of armed
burglary,10 and requires us to consider evolving approaches to the statute of
limitations, and to resolve conflicting decisions within our own district.
For ease of this discussion, it may be helpful to first explain what this issue
does not involve. Over the years, case law has developed regarding the raising of a
statute of limitations defense in two specific contexts: 1) negotiated pleas to a
reduced or lesser charge (resulting in the entry of a plea to a reduced or lesser
offense that would otherwise be time-barred by the statute of limitations); and 2)
circumstances under which a trial court may instruct a jury to consider lesser-
included offenses that are otherwise time-barred by the statute of limitations.
Negotiated Plea to a Lesser (and Otherwise Time-Barred) Offense
Whether characterized as a waiver or estoppel, Florida’s district courts have
held that a defendant who enters a plea to a reduced or lesser offense that would
otherwise be time-barred by the statute of limitations cannot raise the statute of
limitations for the first time on direct appeal. Oliver v. State, 379 So. 2d 143 (Fla.
3d DCA 1980) (applying estoppel principles to hold that defendant, originally
charged with first-degree murder, could not assert statute of limitations for first
time on appeal where, at defendant’s inducement, trial court accepted negotiated
10 The armed sexual battery is a life felony. “A prosecution for a . . . life felony . .
. may be commenced at any time,” § 775.15(1), Fla. Stat. (1990), and is not subject
to a statute of limitations.
9
plea to the reduced (and otherwise time-barred) offense of second-degree murder);
Morris v. State, 909 So. 2d 428 (Fla. 5th DCA 2005) (holding under similar
circumstances that defendant’s failure to assert statute of limitations prior to
entering a negotiated plea constituted a waiver); State v. Robbins, 780 So. 2d 89
(Fla. 2d DCA 2000) (defendant’s nolo contendere plea to all charges constituted a
waiver of his right to assert, for the first time in a motion for postconviction relief,
that the charges as alleged in the information were barred by the statute of
limitations).11
Jury Instructions Permitting Jury to Consider Verdict on Lesser-
Included Offenses Which Are Otherwise Time-Barred
In Tucker v. State, 459 So. 2d 306 (Fla. 1984), the Florida Supreme Court
addressed whether, and under what circumstances, a trial court can properly
instruct a jury to consider a verdict for time-barred, lesser-included offenses. In
Tucker, the crime charged in the information (first-degree murder) was not subject
to any statute of limitations, but the lesser-included homicide offenses (which a
jury is ordinarily required to consider in reaching a verdict) were time-barred under
the statute of limitations. Given that, as a general rule, a judge shall not instruct
on, and a jury cannot consider, a verdict on a time-barred, lesser-included offense,
the court in Tucker addressed whether a defendant can be permitted to waive the
11The defendant in Robbins did not file a direct appeal, and the opinion does not
indicate that the motion for postconviction relief was based upon a claim of
ineffective assistance of trial counsel.
10
statute of limitations. The court concluded that a defendant can waive the statute
of limitations under these circumstances. The court held further that, before a jury
may be permitted to consider a time-barred, lesser-included offense, the trial court
must abide by certain procedural safeguards to ensure a proper waiver of the
statute of limitations:
The statute of limitations defense is an absolute protection against
prosecution or conviction. Before allowing a defendant to divest
himself of this protection, the court must be satisfied that the
defendant himself, personally and not merely through his attorney,
appreciates the nature of the right he is renouncing and is aware of the
potential consequences of his decision. We agree with the state's
position that an effective waiver may only be made after a
determination on the record that the waiver was knowingly,
intelligently and voluntarily made; the waiver was made for the
defendant's benefit and after consultation with counsel; and the waiver
does not handicap the defense or contravene any of the public policy
reasons motivating the enactment of the statute.
Granting a waiver on the bare request for instructions contained in the
record before us would certainly fail to protect a defendant's best
interests and might leave the conviction on otherwise time-barred
offenses vulnerable to collateral attack
Id. at 309.
We can glean at least four legal principles from court decisions involving
the two distinct scenarios discussed above:
First, the statute of limitations is waivable by a defendant, either expressly
or through his own actions. Tucker, 459 So. 2d at 306; Sturdivan v. State, 419 So.
11
2d 300, 302 (Fla. 1982) (observing “a defendant may by his actions waive this
defense.”)
Second, because it is waivable, the statute of limitations necessarily cannot
be considered “jurisdictional,” at least not in the sense of depriving the trial court
of subject-matter jurisdiction. See Rodriguez v. State, 441 So. 2d 1129 (Fla. 3d
DCA 1983) (holding that the statute of limitations defense does not deprive court
of subject matter jurisdiction; to the extent the statute of limitations may be
considered in any sense a jurisdictional impediment, it is one which can be
waived); Farrar v. State, 42 So. 3d 265, 265 (Fla. 5th DCA 2010) (observing that
“[s]tatutes of limitations on crimes are not jurisdictional, and may be waived”);
Morris, 909 So. 2d at 431 (same); Lowe v. State, 501 So. 2d 79 (Fla. 5th DCA
1987) (noting that “[i]n Florida, statutes of limitations on crimes do not limit the
jurisdiction of courts to try criminal charges.”) If the statute of limitations was to
be viewed as depriving the trial court of subject-matter jurisdiction, such an issue
could not be waived, as the parties cannot confer subject-matter jurisdiction by
consent, agreement, acquiescence, waiver or failure to object. Siegel v. Siegel, 575
So. 2d 1267 (Fla. 1991); Sclafani v. Dade County, 323 So. 2d 675 (Fla. 3d DCA
1975). 12
12We note, however, that the Florida Supreme Court, in Mitchell v. State, 25 So.
2d 73, 74 (Fla. 1946) characterized the timely commencement of prosecution as a
“jurisdictional fact” which must be alleged in the charging document and proven
by the State at trial. See discussion infra at *25 (Emas, J., concurring).
12
Third, in the context of a defendant who seeks the benefit of the bargain—
that is, a defendant who knowingly and voluntarily enters a negotiated plea to a
lesser-included offense that is otherwise time-barred (or receives a negotiated
lesser sentence)—he is either estopped from asserting, or deemed to have waived,
a statute of limitations claim on appeal. Having received the benefit of a less
severe sentence (or the benefit of a plea to a less serious charge) by pleading to a
time-barred offense, he may not later seek relief upon the assertion that the offense
was time-barred. Oliver, 379 So. 2d at 143; Morris, 909 So. 2d at 431.
Fourth, at the conclusion of a trial, a trial court is prohibited from instructing
a jury on any time-barred, lesser-included offense (and the jury is prohibited from
considering same) unless the defendant knowingly agrees, personally and on the
record, to waive any claim that such a lesser-included offense is barred by the
statute of limitations. Tucker, 459 So. 2d at 309.13
1. Expanding Tucker’s express waiver requirement to situations other
than a jury’s consideration of time-barred lesser-included offenses
The question we must decide is whether the express-waiver analysis
announced in Tucker should be contextually limited to situations involving a jury’s
13It makes perfect sense in this limited circumstance to require a personal, on-the-
record waiver from the defendant, to ensure that the decision to instruct on a time-
barred lesser is not inadvertent or accidental, but rather the result of a knowing,
informed strategic decision by the defendant. Such a requirement strikes the
appropriate balance between the historically-based concept of jury pardon, notions
of fairness to the parties and the proper administration of justice.
13
consideration of time-barred, lesser-included offenses, or expanded to apply to the
instant case. The instant case involves neither a jury instruction permitting a jury
to consider a time-barred lesser included offense (requiring an express, on-the-
record waiver by the defendant), nor a negotiated plea to a time-barred lesser-
included offense (permitting application of an implied waiver or estoppel
principles). Instead, the very different and narrow question presented is whether a
defendant may assert, for the first time on appeal, that the statute of limitations
bars prosecution for the crime as charged in the information or whether, by failing
to raise the issue below, the defendant has waived the statute of limitations on
direct appeal.
Smith asserts that the crime of armed burglary, alleged in the 2011
information as having been committed in 1990, was on its face barred by the
statute of limitations. Smith did not raise this challenge in the trial court, but
contends that, pursuant to our decision in Key v. State, 990 So. 2d 529 (Fla. 3d
DCA 2008), he is permitted to raise this issue, for the first time on appeal, as
fundamental error requiring reversal.
2. Conflicting decisions within this District
The defendant in Key was charged with and found guilty of armed robbery.
On appeal, the defendant asserted for the first time that the crime as charged in the
information was barred by the statute of limitations. The State conceded error on
14
appeal and this Court reversed the conviction, holding: “[S]ince the error appears
clear on the face of the record, it is a matter of fundamental error which [Key] is
allowed to raise for the first time on this appeal.” Id. at 530. For this proposition,
Key cited to Tucker, 459 So. 2d at 309. However, as discussed earlier, Tucker was
a case involving the authority of the court to permit a jury to consider time-barred
lesser-included offenses. It did not involve a statute of limitations challenge to the
crime as alleged in the information.
Further, the holding in Key—that a defendant may assert for the first time
on appeal that the crime with which the defendant was charged and convicted is
barred by the statute of limitations—conflicts with two prior decisions of this
court. In Fondon v. State, 581 So. 2d 188, 189 (Fla. 3d DCA 1991), we held that
the defendant, convicted of armed robbery, armed burglary, and attempted
kidnapping, as charged in the information, could not raise on appeal that the
charges were barred by the statute of limitations where “this issue has never been
presented, in any context, to the trial court.” Nearly twenty years later, this court
addressed the same issue in Harper v. State, 43 So. 3d 174 (Fla. 3d DCA 2010),
where the defendant was originally charged with one count of resisting an officer
with violence. The State later amended the information to add the charge of
fleeing or eluding an officer. This new charge was added to the information after
the applicable statute of limitations had expired. However, the defense did not
15
move to dismiss that charge or otherwise raise a statute of limitations challenge in
the trial court. Harper was later convicted of the fleeing charge and raised the
statute of limitations for the first time on appeal. We concluded, following our
decision in Fondon, that the defendant’s failure to raise the issue below prevented
our consideration of the issue on direct appeal.14
3. Resolving the intra-district conflict
Fondon and Harper appear to be the only decisions in Florida directly
holding that, in order to properly preserve the issue for appeal, a defendant must
raise a statute of limitations challenge to the crime as charged in the information,
and cannot raise the issue for the first time on appeal. Other district courts have
disagreed. For example, in Maguire v. State, 453 So. 2d 438, 440 (Fla. 2d DCA
1984), the Second District stated: “A defendant need not raise the bar of the statute
of limitations and his failure to do so does not preclude appellate consideration of
the issue.”15 In a companion case, Bridenthal v. State, 453 So. 2d 437, 438 (Fla.
2d DCA 1984), the Second District reaffirmed its holding in Maguire:
14 We nevertheless reversed, holding that, under the exceptional circumstances of
the case, trial counsel rendered ineffective assistance in failing to raise the issue
below, and that such ineffectiveness appeared on the face of the record. Harper, 43
So. 2d at 175-76.
15 It is unclear whether this language is dicta, as it appears the issue was in fact
raised in the trial court. As the Second District noted in its opinion: “The
defendants in this case filed motions to dismiss based on the statute of limitations,
and prevailed as to several counts in the charging documents.” Maguire, 453 So.
2d at 440. While we can only speculate about this apparent contradiction, it may
be that a defendant other than Maguire raised the issue in the trial court, or perhaps
16
[I]n the separate appeals of the defendant's codefendants, this court
has issued an opinion reversing the codefendants' convictions on the
seven larceny counts on the ground that the larceny counts are barred
by the statute of limitations. Maguire v. State, 453 So.2d 438 (Fla. 2d
DCA 1984). The statute of limitations is a jurisdictional issue and this
court is not foreclosed from considering that issue notwithstanding
that the issue was not raised at the trial or appellate level. Mead v.
State, 101 So.2d 373 (Fla.1958).
Maguire, and other cases holding that the issue can be raised for the first
time on appeal, rely principally upon the Florida Supreme Court’s decisions in
Mead, Mitchell v. State, 25 So. 2d 73 (Fla. 1946) and Nelson v. State, 17 Fla. 195
(1879).
In Mead, 101 So. 2d at 374, the defendant was convicted of grand larceny
after he allegedly stole 1,312 pounds of copper wire, as charged in the information.
The information upon which defendant was tried was filed on August 29, 1956,
and alleged that the crime occurred on August 1, 1954, more than two years before
the filing of the information. Defendant did not file a pretrial motion raising the
statute of limitations, but raised the issue for the first time on appeal following his
conviction. The Florida Supreme Court reversed the conviction, holding:16
The appellant was not required to raise the question of the statute of
limitations as the statute must be construed liberally in favor of
defendants and need not be pleaded in bar.17 It was incumbent on the
the statute of limitations was raised as to some but not all counts in the charging
document.
16 The court’s other holding in Mead is not pertinent to our discussion.
17 This statement appears, in our view, to be a non sequitur. It is true of course that
the statute of limitations is a creature of statute (there being no statute of
17
state not only to prove that the appellant perpetrated the crime but that
he did so within two years of the filing of the information on which he
was being tried and not, as the judge charged the jury, within two
years of the filing of the information first presented and subsequently
abandoned.
Id. at 375. In support of the proposition that the defendant was not required to
raise the issue below, the Court cited to Mitchell, 25 So. 2d at 73. Mitchell, in
turn, relied upon the 1879 decision in Nelson, 17 Fla. at 197, which indeed held:
Statutes of limitations in respect to crimes are always construed
liberally in favor of defendants, and it is not deemed necessary for a
party relying upon them to plead them in bar. The prosecutor must
show the commission of the offence within the time fixed by the
statute.
However, Nelson involved a very different situation. In that case, the defendant
was indicted for first-degree murder, a crime for which there is no statute of
limitations. The indictment was returned April 1877, and the crime was alleged to
limitations on prosecutions at common law) and the substantive application of the
statute of limitations must therefore be construed in favor of the defendant.
However, it does not follow that the procedural question presented here— when a
defendant must raise the statute of limitations—is one “which must be construed
liberally in favor of defendants.” Indeed, there are statutory provisions throughout
Florida’s criminal code which, though substantively construed in favor of the
defendant, nevertheless require a defendant procedurally to raise the issue in the
trial court in order to preserve the issue for review. In fact, applying a rule which
permits this issue to be raised for the first time on appeal would represent the rare
exception to the general rule that the sufficiency of an indictment or information is
not subject to direct review on appeal in the absence of an objection or other
challenge in the trial court. Roberts v. State, 374 So. 2d 1000 (Fla. 3d DCA 1979);
Ingraham v. State, 32 So. 3d 761 (Fla. 2d DCA 2010); McMillan v. State, 832 So.
2d 946 (Fla. 5th DCA 2002); Hart v. State, 761 So. 2d 334 (Fla. 4th DCA 1998);
Carver v. State, 560 So. 2d 258 (Fla. 1st DCA 1990).
18
have occurred in November of 1872, more than five years earlier. In 1872, the
statute of limitations was two years for all offenses except those punishable by
death (which had no statute of limitations). Id.
Following trial, Nelson was convicted of third-degree murder, an offense not
punishable by death and therefore an offense subject to the general two-year statute
of limitations. Nelson moved for an arrest of judgment and discharge, which the
trial court denied. On appeal, the Florida Supreme Court held that Nelson was
entitled to discharge because his conviction for the lesser-included offense of third-
degree murder was barred by the two-year statute of limitations. It was in this
context that the Florida Supreme Court held that “it is not deemed necessary for a
party relying upon [the statute of limitations] to plead them in bar.” Id. Placed in
its proper context, then, the proposition is rather unremarkable: a defendant need
not raise, in the trial court, the statute of limitations as to lesser-included offenses
that are barred by the statute of limitations. Indeed, Nelson presaged the very rule
announced more than 100 years later in Tucker, holding that a defendant may
waive the statute of limitations defense, but that before a jury can be instructed on
and consider a time-barred lesser-included offense, the defendant must expressly
waive the statute of limitations.
19
The holding of Nelson, though announced in the context of a conviction for
a lesser-included offense, has nevertheless been extended by the Florida Supreme
Court well beyond its factual setting, as applied in Mitchell and Mead.
However, the precise contours established by this line of supreme court
cases have not been entirely clear. For example, in State v. King, 282 So. 2d 162,
164 (Fla. 1973), the court reaffirmed the concept that “the time within which an
offense is committed is a jurisdictional fact.” Immediately thereafter, however, the
court added: “In fact, a most significant burden of proof is placed upon the State
in order to proceed once the jurisdiction of the Court is questioned through the
raising of the Statute of Limitations.” Id. (Emphasis added.)
In Horton v. Mayo, 15 So. 2d 327 (Fla. 1943), the court noted that the face
of the information indicated it was filed more than four years after the date of the
crime alleged in the information (and thus beyond the two-year statute of
limitations). The court also noted that the defendant did not file a motion to quash
the information “and if he had, the County Solicitor could have amended his
information or filed a new one so as to show that the prosecution for the offense
charged in the information, and upon which the information was based, was really
begun” within the statute of limitations. Id. at 328. Although the Court had no
reason to reach the question of whether the defendant should have been required to
20
raise this issue in the trial court, the above excerpt evidences a primary rationale
for such a rule.
Further, in Sturdivan, 419 So. 2d at 301-02, the Florida Supreme Court
reaffirmed the legal requirement that the State allege sufficient facts in the
charging document to establish that the prosecution for the offense charged was
commenced within the statute of limitations. The court further observed that
where (as was the case in Sturdivan) it “appears from the date shown on the
charging document that the statute of limitations may have run, the state must
allege facts necessary to show the statute was tolled for the offense charged before
the prosecution commenced.” Id. at 302. Importantly, however, the court added:
“If the state does not allege the tolling of the statute in an otherwise sufficient
information or indictment, a defendant may by his actions waive this defense.” Id.
(Emphasis added.) Thus the Sturdivan Court appeared to at least recognize that a
defendant’s failure to raise a statute of limitations challenge to an otherwise
facially sufficient charging document could constitute a waiver of this defense.18
18 This is consistent with Florida Rule of Criminal Procedure 3.140(o), which
provides:
(o) Defects and Variances. No indictment or information, or any
count thereof, shall be dismissed or judgment arrested, or new trial
granted on account of any defect in the form of the indictment or
information or of misjoinder of offenses or for any cause whatsoever,
unless the court shall be of the opinion that the indictment or
information is so vague, indistinct, and indefinite as to mislead the
accused and embarrass him or her in the preparation of a defense or
21
These cases evidence an evolving approach, over time, to the statute of
limitations, and with it, a less formalistic view of the pleading and proof
requirements. This evolution compels a reexamination of the existing principle
that a defendant may raise the statute of limitations for the first time on direct
appeal, and that the statute of limitations defense “need not be pleaded in bar.”
Mead, 101 So. 2d at 375.
III. CONCLUSION
Were we writing on a clean slate, we would hold that a defendant cannot
raise, for the first time on appeal, the claim that the crime with which he was
actually charged and convicted is barred by the statute of limitations. There are
sound policy and practical reasons (set forth in the balance of this opinion) why a
defendant should not be permitted to raise the statute of limitations for the first
time on appeal under such circumstances.
We are nevertheless bound by the existing decisions of the Florida Supreme
Court to hold that the defendant may under these circumstances raise the statute of
limitations for the first time on appeal. We affirm the judgment and sentence for
armed sexual battery. We reverse the judgment and sentence for armed burglary,
with directions to dismiss that charge as time-barred and to discharge the defendant
expose the accused after conviction or acquittal to substantial danger
of a new prosecution for the same offense.
22
on that charge. In doing so, we also recede from our decisions in Fondon and
Harper, to the extent they are inconsistent with our holding in this case.
In light of the uncertainty surrounding this issue, and the significance of the
implications flowing from permitting a defendant to raise the statute of limitations
for the first time on appeal, we certify the following question to the Florida
Supreme Court as one of great public importance:
Must a defendant, who claims that the offense as charged in the
information is barred by the statute of limitations, raise the issue
in the trial court in order to preserve the issue for direct appeal?
Affirmed in part, reversed in part and remanded with directions. Question
of great public importance certified.
23
EARVIN SMITH V. STATE
3D14-1635
EMAS, J., concurring.
I concur fully in the majority opinion, and write to set forth the analysis
which I believe supports an affirmative answer to the question certified as one of
great public importance:
Must a defendant, who claims that the offense as charged in the
information is barred by the statute of limitations, raise the issue
in the trial court in order to preserve the issue for direct appeal?
ANALYSIS
1. The Florida Supreme Court’s earliest decisions on the statute of
limitations
In order to properly evaluate the issue, we must explore the historical
underpinnings associated with the statute of limitations, and its development over
time. Florida’s statute of limitations jurisprudence dates back nearly 140 years.
The statute of limitations provision first enacted in Florida was short, simple and
straightforward: “All offences not punishable with death shall be prosecuted
within two years next after the same shall have been committed. There shall be no
limitation for offences punishable by death.” Thomp. Dig., 490; McClellan’s
Digest, Chapter 83, § 2 (1878); McClellan’s Digest, Chapter 435, § 2 (1880). See
Anderson v. State, 20 Fla. 381, 383 (1883); Savage v. State, 18 Fla. 970 (Fla.
1882); Nelson v. State, 17 Fla. 195 (1879).
24
Given this unadorned limitations statute, and the then-existing formality
requirements for pleading in criminal cases, it is no surprise that the earliest cases
applying this provision involved little more than simple math: a comparison of the
date of offense (as set forth in the charging document) with the date on which the
indictment was returned, to determine if more than two years passed between those
dates. No factual findings were required, as arithmetic provided the only
“analysis” in assessing whether the prosecution was barred by the statute of
limitations. In Anderson, 20 Fla. at 381, the defendant asserted that the charge of
(and subsequent conviction for) willfully altering and changing the mark of an
animal was barred by the two-year statute of limitations. The Supreme Court’s
entire analysis of this issue, as set forth in the opinion, was as follows:
The indictment charges that this alleged offence was committed “on
or about the first day of March, A.D. 1880.” It was found at the
spring term of the Circuit Court held in and for Wakulla county, and
was filed in the court on ___ day of April, 1882. This shows
conclusively that the indictment was not properly found and filed
within two years next after it is, in the indictment, alleged that the
offense was committed.
Id. at 383.
2. The statute of limitations as a jurisdictional fact
Some of these early decisions of the Florida Supreme Court characterized
the criminal statute of limitations as a “jurisdictional fact.” The opinions are not
entirely clear what is meant by a jurisdictional fact, specifically whether the court
25
intended compliance with the statute to serve as requisite for subject-matter
jurisdiction. However, decisions from this same era do appear to use the phrase
“jurisdictional fact” to connote an essential allegation of fact needed to establish
subject-matter jurisdiction or personal jurisdiction. See, e.g., Ex Parte Hayes, 25
Fla. 279, 282-83 (Fla. 1889) (stating “[t]he question, then, is, did the court acquire
jurisdiction of the case? We think not. In a special proceeding of this kind
everything the statute makes an ingredient of the case must be made to appear in
the beginning. The affidavit or complaint of the prosecutrix before the magistrate
is the foundation of the proceeding, and, if it fails to show jurisdictional facts, the
action on it of either the magistrate or the court to which it is sent will be coram
non judice and void”); City of Jacksonville v. L’Engle, 20 Fla. 344, 348 (Fla.
1883) (holding “[i]f the Legislature had the power to confer upon the County
Commissioners jurisdiction to hear and determine the question as to whether or not
a town was of undue extent, and to deprive it of a part of its territory, then, the
proceeding being statutory, before a body of limited powers, the record must show
affirmatively that such a case was brought before them as they were authorized to
hear and determine, and that all the jurisdictional facts were found to exist. Where
the jurisdiction and power to hear and determine depends upon the existence of a
fact, that fact must appear or the proceedings are coram non judice and void.”);
Deans v. Wilcoxon, 18 Fla. 531, 550 (Fla. 1882) (noting “[i]f the jurisdiction of the
26
County Court to sell the real estate of decedents was restricted to solvent estates,
the necessity of an allegation of solvency as a jurisdictional fact might perhaps be
insisted upon, but the jurisdiction of the County Courts exists to sell the land of
both solvent and insolvent estates”); Hays’ Adm’x v. McNealy, 16 Fla. 409, 414
(Fla. 1878) (stating “[i]n order to give jurisdiction of the subject-matter, this
petition for the sale should have set out, either in words or substance, that the
personal estate was exhausted. This fact at least should appear from the record.
This was a jurisdictional fact necessary to be alleged or to appear in order that the
court could authorize the sale by the administrator.”)
Over the past 140 years, the statute of limitations has undergone an
extensive evolution, from its humble birth as a simple provision comprised of
twenty words (“All offences not punishable with death shall be prosecuted within
two years next after the same shall have been committed.”) to a complex statute,
comprised of nineteen subsections, and containing a multifaceted array of tolling
provisions, exceptions and extensions. To illustrate the stark contrast with
Florida’s original statute of limitations, I set forth below the full text of our present
statute, section 775.15, Florida Statutes (2016):
775.15. Time limitations; general time limitations; exceptions
(1) A prosecution for a capital felony, a life felony, or a felony that
resulted in a death may be commenced at any time. If the death
penalty is held to be unconstitutional by the Florida Supreme Court or
the United States Supreme Court, all crimes designated as capital
27
felonies shall be considered life felonies for the purposes of this
section, and prosecution for such crimes 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:
(a) A prosecution for a felony of the first degree must be commenced
within 4 years after it is committed.
(b) A prosecution for any other felony must be commenced within 3
years after it is committed.
(c) A prosecution for a misdemeanor of the first degree must be
commenced within 2 years after it is committed.
(d) A prosecution for a misdemeanor of the second degree or a
noncriminal violation must be commenced within 1 year after it is
committed.
(3) 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.
(4)(a) Prosecution on a charge on which the defendant has previously
been arrested or served with a summons is commenced by the filing of
an indictment, information, or other charging document.
(b) A prosecution on a charge on which the defendant has not
previously been arrested or served with a summons is commenced
when either an indictment or information is filed, provided the capias,
summons, or other process issued on such indictment or information
is executed without unreasonable delay. In determining what is
reasonable, inability to locate the defendant after diligent search or the
defendant's absence from the state shall be considered. 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.
(c) If, however, an indictment or information has been filed within the
time period prescribed in this section and the indictment or
information is dismissed or set aside because of a defect in its content
or form after the time period has elapsed, the period for commencing
prosecution shall be extended 3 months from the time the indictment
or information is dismissed or set aside.
(5) The period of limitation does not run during any time when the
defendant is continuously absent from the state or has no reasonably
28
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.
(6) A prosecution for perjury in an official proceeding that relates to
the prosecution of a capital felony may be commenced at any time.
(7) A prosecution for a felony that resulted in injury to any person,
when such felony arises from the use of a “destructive device,” as
defined in s. 790.001, may be commenced within 10 years.
(8) A prosecution for a felony violation of chapter 517 or s. 409.920
must be commenced within 5 years after the violation is committed.
(9) A prosecution for a felony violation of chapter 403 must be
commenced within 5 years after the date of discovery of the violation.
(10) A prosecution for a felony violation of s. 825.102 or s. 825.103
must be commenced within 5 years after it is committed.
(11) A prosecution for a felony violation of ss. 440.105 and 817.234
must be commenced within 5 years after the violation is committed.
(12) If the period prescribed in subsection (2), subsection (8),
subsection (9), subsection (10), or subsection (11) has expired, a
prosecution may nevertheless be commenced for:
(a) Any offense, a material element of which is either fraud or a
breach of fiduciary obligation, within 1 year after discovery of the
offense by an aggrieved party or by a person who has a legal duty to
represent an aggrieved party and who is himself or herself not a party
to the offense, but in no case shall this provision extend the period of
limitation otherwise applicable by more than 3 years.
(b) Any offense based upon misconduct in office by a public officer or
employee at any time when the defendant is in public office or
employment, within 2 years from the time he or she leaves public
office or employment, or during any time permitted by any other part
of this section, whichever time is greater.
(13)(a) If the victim of a violation of s. 794.011, former s. 794.05,
Florida Statutes 1995, s. 800.04, s. 826.04, or s. 847.0135(5) is under
the age of 18, the applicable period of limitation, if any, does not
begin to run until the victim has reached the age of 18 or the violation
is reported to a law enforcement agency or other governmental
agency, whichever occurs earlier. Such law enforcement agency or
29
other governmental agency shall promptly report such allegation to
the state attorney for the judicial circuit in which the alleged violation
occurred. If the offense is a first or second degree felony violation of
s. 794.011, and the offense is reported within 72 hours after its
commission, the prosecution for such offense may be commenced at
any time. This paragraph applies to any such offense except an
offense the prosecution of which would have been barred by
subsection (2) on or before December 31, 1984.
(b) If the offense is a first degree felony violation of s. 794.011 and
the victim was under 18 years of age at the time the offense was
committed, a prosecution of the offense may be commenced at any
time. This paragraph applies to any such offense except an offense the
prosecution of which would have been barred by subsection (2) on or
before October 1, 2003.
(c) If the offense is a violation of s. 794.011 and the victim was under
16 years of age at the time the offense was committed, a prosecution
of the offense may be commenced at any time. This paragraph applies
to any such offense except an offense the prosecution of which would
have been barred by subsection (2) on or before July 1, 2010.
(14)(a) A prosecution for a first or second degree felony violation of s.
794.011, if the victim is 16 years of age or older at the time of the
offense and the offense is reported to a law enforcement agency
within 72 hours after commission of the offense, may be commenced
at any time.
(b) Except as provided in paragraph (a) or paragraph (13)(b), a
prosecution for a first or second degree felony violation of s. 794.011,
if the victim is 16 years of age or older at the time of the offense, must
be commenced within 8 years after the violation is committed. This
paragraph applies to any such offense except an offense the
prosecution of which would have been barred by subsection (2) on or
before July 1, 2015.
(15)(a) In addition to the time periods prescribed in this section, a
prosecution for any of the following offenses may be commenced
within 1 year after the date on which the identity of the accused is
established, or should have been established by the exercise of due
diligence, through the analysis of deoxyribonucleic acid (DNA)
evidence, if a sufficient portion of the evidence collected at the time
of the original investigation and tested for DNA is preserved and
available for testing by the accused:
1. An offense of sexual battery under chapter 794.
30
2. A lewd or lascivious offense under s. 800.04 or s. 825.1025.
(b) This subsection applies to any offense that is not otherwise barred
from prosecution between July 1, 2004, and June 30, 2006.
(16)(a) In addition to the time periods prescribed in this section, a
prosecution for any of the following offenses may be commenced at
any time after the date on which the identity of the accused is
established, or should have been established by the exercise of due
diligence, through the analysis of deoxyribonucleic acid (DNA)
evidence, if a sufficient portion of the evidence collected at the time
of the original investigation and tested for DNA is preserved and
available for testing by the accused:
1. Aggravated battery or any felony battery offense under chapter 784.
2. Kidnapping under s. 787.01 or false imprisonment under s. 787.02.
3. An offense of sexual battery under chapter 794.
4. A lewd or lascivious offense under s. 800.04, s. 825.1025, or s.
847.0135(5).
5. A burglary offense under s. 810.02.
6. A robbery offense under s. 812.13, s. 812.131, or s. 812.135.
7. Carjacking under s. 812.133.
8. Aggravated child abuse under s. 827.03.
(b) This subsection applies to any offense that is not otherwise barred
from prosecution on or after July 1, 2006.
(17) In addition to the time periods prescribed in this section, a
prosecution for video voyeurism in violation of s. 810.145 may be
commenced within 1 year after the date on which the victim of video
voyeurism obtains actual knowledge of the existence of such a
recording or the date on which the recording is confiscated by a law
enforcement agency, whichever occurs first. Any dissemination of
such a recording before the victim obtains actual knowledge thereof or
before its confiscation by a law enforcement agency does not affect
any provision of this subsection.
(18) If the offense is a violation of s. 800.04(4) or (5) and the victim
was under 16 years of age at the time the offense was committed, a
prosecution of the offense may be commenced at any time, unless, at
the time of the offense, the offender is less than 18 years of age and is
no more than 4 years older than the victim. This subsection applies to
an offense that is not otherwise barred from prosecution on or before
October 1, 2014.
(19) A prosecution for a violation of s. 787.06 may be commenced at
any time. This subsection applies to any such offense except an
31
offense the prosecution of which would have been barred by
subsection (2) on or before October 1, 2014.
Under the current statute, the question of whether a prosecution was timely
commenced raises any number of factual issues, requiring an evidence-based
determination. Below are just a few examples raising questions of fact which
would have to be resolved before a court could determine whether the State has
timely commenced the prosecution for the crime charged:
- The statute of limitations “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.” § 775.15(5).
- Where the plain legislative purpose of the criminal statute is to prohibit a
“continuing course of conduct,” the offense is not considered
“committed” (and the statute of limitations does not commence) until
“the course of conduct or the defendant’s complicity therein is
terminated.” § 775.15(3).
- For offenses in which fraud is a material element, the statute of
limitations may be extended such that the prosecution must be
commenced “within 1 year after discovery of the offense by an aggrieved
party. . . .”19 § 775.15(12)(a).
- For sexual battery (chapter 794) and lewd or lascivious offenses (sections
800.04, 825.1025) a prosecution “may be commenced within 1 year after
the date on which the identity of the accused is established, or should
have been established by the exercise of due diligence, through the
19However, the otherwise applicable statute of limitation for such offenses may
not be extended by more than three years.
32
analysis of deoxyribonucleic acid (DNA) evidence, if a sufficient portion
of the evidence collected at the time of the original investigation and
tested for DNA is preserved and available for testing by the accused.” §
775.15(15)(a).20
- For burglary offenses (section 810.02) a prosecution “may be
commenced at any time after the date on which the identity of the
accused is established, or should have been established by the exercise of
due diligence, through the analysis of deoxyribonucleic acid (DNA)
evidence, if a sufficient portion of the evidence collected at the time of
the original investigation and tested for DNA is preserved and available
for testing by the accused.” § 775.15(15)(a).21
In addition to the significant expansion of this statute over time, the last 140
years have seen substantial changes to Florida’s discovery and pleading practices.
The historically-limited rules of discovery and formalistic pleading requirements
have given way to modern rules of liberal discovery and relaxed standards of
pleading. See, e.g., Tucker v. State, 459 So. 2d 306, 308-09 (Fla. 1984) (and cases
cited). The combination of these changes over the past century and a half leads me
20 This provision was enacted in 2004 and applies to any offense that is not
otherwise barred from prosecution between July 1, 2004 and June 30, 2006.
21 This provision was added in 2006 to add DNA tolling provisions for several
offenses, including sexual battery and burglary offenses, so long as that offense
was not otherwise barred from prosecution on July 1, 2006, the effective date of
the amendment. See Ch. 2006-266, § 1, Laws of Florida, codified at §
775.15(16)(a)1.-8. However, that amendment is inapplicable to the instant
burglary charge, as the prosecution for that offense would have already been barred
by the statute of limitations at the time the amendment became effective. See
Lawson v. State, 51 So. 3d 1287 (Fla. 2d DCA 2011); Bryson v. State, 42 So. 3d
852 (Fla. 1st DCA 2010).
33
to question the continued vitality of the common-law rule of Nelson, Mitchell v.
State, 25 So. 2d 73 (Fla. 1946), and Mead v. State, 101 So. 2d 373 (Fla. 1958).
3. “Cessante ratione legis cessat et ipsa lex”: The reason for the law
ceasing, the law itself ceases also
I conclude that the time has come to join the overwhelming majority of the
federal courts (including the United States Supreme Court) and adopt the modern
view that the statute of limitations is a non-jurisdictional affirmative defense, and
that a defendant seeking to assert that the crime as charged is barred by the statute
of limitations must raise the issue in the trial court to preserve the issue for direct
appeal. Such a view should not be considered a radical departure from existing
law, but rather the next logical step in the evolution of statute of limitations
jurisprudence. In light of the statutory expansion of the statute of limitations, the
broad discovery rules and relaxed pleading requirements in criminal cases, it is
appropriate to apply the well-accepted legal maxim “Cessante ratione legis, cessat
et ipsa lex”: The reason of the law ceasing, the law itself ceases also. Black’s Law
Dictionary 185, (2nd ed. 1910); Merchant’s Hostess Svc. of Fla., Inc. v. Cain, 9
So. 2d 373 (Fla. 1942); Reid v. Barry, 112 So. 846, 856 (Fla. 1927). As Justice
Oliver Wendell Holmes observed: “It is revolting to have no better reason for a
rule of law than that so it was laid down in the time of Henry IV. It is still more
revolting if the grounds upon which it was laid down have vanished long since,
and the rule simply persists from blind imitation of the past.” O. Holmes, The Path
34
of the Law, 10 Harv. L. Rev. 457, 469 (1897). The Florida Supreme Court “has
not hesitated to apply the ‘rule of reason’ expressed by the maxim cessante ratione
cessat et ipsa lex in over-ruling a common-law rule previously followed by this
court.” Amendola v. Amendola, 118 So. 2d 13, 16 (Fla. 1960) (J. Roberts
dissenting) (citing Abraham v. Baldwin, 42 So. 591 (Fla. 1906)).
For example, in Zellers v. State, 189 So. 236 (Fla. 1939), the Florida
Supreme Court addressed whether a defendant charged with a felony had the right
to waive a trial by jury and be tried by the trial judge. The court noted that “under
the common law, the accused was not permitted to waive trial by jury, as generally
he was not permitted to waive any right which was intended for his protection.” Id.
at 237 (quoting Patton v. United States, 281 U.S. 276, 306 (1930)). The Zellers
Court acknowledged the basis for such a rule at common law:
The ancient doctrine that the accused could waive nothing was
unquestionably founded upon the anxiety of the courts to see that no
innocent man should be convicted. It arose in those days when the
accused could not testify in his own behalf, was not furnished counsel,
and was punished, if convicted, by the death penalty, or some other
grievous punishment out of all proportion to the gravity of his crime.
Under such circumstances it was well, perhaps, that such a rule should
exist and well that every technical requirement should be insisted on,
when the state demanded its need of blood. Such a course raised up a
sort of a barrier which the court could utilize when a prosecution was
successful which ought not to have been successful, or when a man
without money, without counsel, without ability to summon
witnesses, and not permitted to tell his own story, had been unjustly
convicted but yet under the ordinary principles of waiver as applied to
civil matters, had waived every defect in the proceedings.
35
Id. at 237 (quoting Hack v. Wisconsin, 124 N.W. 492, 494 (Wis. 1910)).
Applying the maxim cessante ratione legit cessat et ipsa lex, the court
acknowledged that the “conditions which formed the basis for this common law
rule have ceased to exist, and with their disappearance justification for the old rule
no longer rests upon a substantial basis.” Id. There are other examples to draw
upon, but perhaps the single best parallel can be found in the evolution of rules
regarding pleading and proof of venue in criminal cases.
4. An analogy to the evolution of the venue pleading requirement
The earliest cases in Florida held that venue was a material allegation, that
the State was required to allege venue in the charging document, and that a
conviction could not be sustained without proof that the offense was committed
within the county alleged. See, e.g., Robinson v. State, 20 Fla. 804 (Fla. 1884);
Evans v. State, 17 Fla. 192 (Fla. 1879).
In State v. Black, 385 So. 2d 1372 (Fla. 1980), the Florida Supreme Court
addressed whether the failure to allege venue in a charging document was a
fundamental defect voiding a conviction. The court acknowledged that liberal
discovery rules and modern pleading practices (including the availability of a
statement of particulars) allowed a defendant more leeway in preparing a defense
as compared with that available at common law. Nevertheless, the court in 1980
adhered to the “four corners of the indictment” rule, and that a statement of
36
particulars cannot cure fundamental defects in an indictment. Ultimately, the court
relied on well-entrenched case law, dating back to at least 1892, and held:
“Venue is an essential element in any criminal charge. As such, venue has
long been held a necessary part of an indictment which must be sustained by
affirmative proof at trial.” Id. at 1375. The court continued:
Allegations as to the place of the alleged offense also fix the
jurisdiction of the grand jury and court. See 41 Am.Jur.2d Indictments
& Informations ss 122, 124 (1968); Annot. 59 A.L.R. 2d 906 s 4
(1956). Proper jurisdictional allegations are as essential in an
accusatory writ as are those relating to the material elements of the
crime. Pope v. State, 268 So.2d 173 (Fla. 2d DCA 1972); Conner v.
State, 29 Fla. 455, 10 So. 891 (1892).
In view of the secrecy which surrounds grand jury proceedings,
indictments, especially, should facially indicate jurisdiction. State v.
Ostergard, 343 So.2d 874 (Fla.2d DCA 1977), writ discharged 360
So.2d 414, 414 (Fla.1978) (Adkins, J., concurring specially).
The indictment in the case at bar did not even allege that the “grand
jurors of . . . Florida . . . in . . . Hernando County” presented that the
defendant “in the county and state aforesaid” committed an offense.
McElvene v. State, 105 Fla. 639, 142 So. 216 (1932). This is not an
appropriate instance to encourage liberal amendment of imprecise
allegations as long as the defendant is not prejudiced. Lackos v. State,
339 So.2d 217 (Fla.1976). The indictment completely failed to allege
venue; in this it was fundamentally defective and void. We affirm the
holding in Rimes v. State that the “defect is one of substance and not
of form.” 133 So.2d at 551.
Id.
Thus, in 1980, the Florida Supreme Court in Black reaffirmed the long-
standing principles that: venue is a jurisdictional allegation in a charging
document; alleging venue is as essential as alleging the material elements of the
37
crime; the failure to allege venue renders the charging document fundamentally
defective; and the defect is one of substance and not of form. These principles
mirror the court’s historical view of the statute of limitations and the requirement
that the charging document allege the necessary jurisdictional facts to establish the
timely commencement of a prosecution.
However, less than five years later, the Florida Supreme Court in Tucker,
459 So. 2d at 309, receded from its holding in Black. In Tucker, the defendant was
tried on the charge of first-degree murder. At the end of the State’s case, Tucker
moved to dismiss the indictment on the ground that it failed to allege venue. The
motion was denied and Tucker was convicted. On appeal, this court affirmed the
conviction and sentence, and certified the following question to the Florida
Supreme Court as one of great public importance:
Is the error in the failure of an indictment to specify the place where
the crime allegedly occurred so fundamental that it may be urged on
appeal, though not properly presented at the trial court, where the
defendant is not hindered in the preparation or presentation of his
defense and the situs of the crime is proved at trial?
The Florida Supreme Court answered the certified question in the negative,
and receded from its decision in Black. In doing so, the court first reviewed the
long-standing case law relied upon by the court in reaching its decision in Black.
After doing so, it addressed the “jurisdictional” nature of allegations of venue:
Nor is the allegation of venue properly considered to be a
jurisdictional requisite, as we held in Black. The issue is, as the Third
38
District noted, solely one of venue, not affecting the power of the
court to hear that case but rather addressing the propriety of that
particular trial court to hear that particular case. This Court, in the
same year it decided Black, discussed the difference between the two
concepts in Lane v. State, 388 So.2d 1022, 1026 (Fla.1980):
Venue should not be confused with jurisdiction although
some of the original common law cases appear to
concern venue.... Jurisdiction is the very power of the
state to exert the influence of its courts over a criminal
defendant, and it cannot be waived. Venue on the other
hand is merely a privilege which may be waived or
changed under certain circumstances.
Id. at 308.
The Tucker Court observed further that the requirement that venue be
alleged in an indictment finds its genesis not upon any substantive statutory
mandate, but rather represents “a procedural rule stemming from common-law
applications of due process considerations.” Id.
Finally, the Tucker Court considered the policy implications and
acknowledged the role of modern discovery and pleading:
Nor does any policy argument support absolute adherence to that
archaic rule of pleading. Modern discovery procedures have vitiated
the danger of prejudice in the preparation of a defense and have led to
a relaxation of strict pleading requirements. See, e.g., York v. State,
432 So.2d 51 (Fla.1983); Sparks v. State, 273 So.2d 74 (Fla.1973).
Double jeopardy safeguards are a part of both procedural rules, see,
e.g., Florida Rule of Criminal Procedure 3.190(c)(2), and substantive
law. Amend. V, U.S. Const.; art. I, § 9, Fla. Const.; Blockburger v.
United States.
Id. at 308-09.
39
Tucker held that the failure to allege venue in an indictment or information
is an error of form and not of substance, which does not render the charging
document void in the absence of a showing of prejudice to the defendant. Id. at
309. In so holding, and answering the certified question in the negative, the court
implicitly determined that the error was not fundamental and that defendant
waived the claim by his failure to raise it in the trial court.
Striking parallels can be found in the evolution of pleading requirements for
venue and for the statute of limitations. In each, the longstanding legal principle
represents a common-law procedural rule grounded in due process considerations;
in each, the Florida Supreme Court has historically characterized the pleading
requirement as an “essential element” or “jurisdictional fact” which must be
alleged in a charging instrument; and in each, courts have for some time held that
the failure to include such allegations is a fundamental defect which can be raised
for the first time on appeal.
After observing that the modern rules of discovery and relaxed pleading
requirements militate against absolute adherence to archaic rules, Tucker held that
the failure to allege venue is not fundamental and may not be urged on appeal
unless first raised in the trial court. Id.
40
I believe that a similar reassessment of the statute of limitations pleading
requirements, and their longstanding characterization as “jurisdictional facts,”
leads to the very same conclusion reached by the Florida Supreme Court in Tucker.
5. The non-jurisdictional nature of the statute of limitations
This view finds further support in the fact that the court in Tucker
(addressing the second issue raised in that case) expressly held that a defendant can
validly waive the statute of limitations defense under certain circumstances. Id.
See also Sturdivan v. State, 419 So. 2d 300, 302 (Fla. 1982) (holding: “If the state
does not allege [in the charging document] the tolling of the statute in an otherwise
sufficient information or indictment, a defendant may by his actions waive this
defense.”) Such a view has been espoused by the district courts as well. See
Rodriguez v. State, 441 So. 2d 1129 (Fla. 3d DCA 1983) (holding a statute of
limitations defense does not deprive court of subject matter jurisdiction; to the
extent the statute of limitations may be considered in any sense a jurisdictional
impediment, it is one which can be waived); Farrar v. State, 42 So. 3d 265, 265
(Fla. 5th DCA 2010) (observing that “[s]tatutes of limitations on crimes are not
jurisdictional, and may be waived”); Morris v. State, 909 So. 2d 428 (Fla. 5th DCA
2005) (same); Lowe v. State, 501 So. 2d 79 (Fla. 5th DCA 1987) (same).22 Any
22 It is noteworthy that the United States Supreme Court recently held that the
statute of limitations is ordinarily not jurisdictional, and that it will not be treated
as such unless Congress has “clearly stated” that it is. Musacchio v. United States,
__ U.S. __, 136 S.Ct. 709, 716-17 (2016) (quoting Sebelius v. Auburn Regional
41
contrary view cannot be reconciled with the principle that subject-matter
jurisdiction cannot be conferred by consent, agreement, acquiescence, waiver or
failure to object. Siegel v. Siegel, 575 So. 2d 1267 (Fla. 1991); Sclafani v. Dade
County, 323 So. 2d 675 (Fla. 3d DCA 1975).
6. The waivability of the statute of limitations
I believe that that the jurisdictional approach to the statute of limitations is
archaic, especially given the expansive rules of discovery, relaxed pleading
requirements, and the factual inquiries inherent in the tolling and extension
provisions contained in Florida’s present-day statute of limitations.
In addressing the extent to which the statute of limitations can be waived,
courts have generally taken one of four approaches:
1) The statute of limitations is a jurisdictional fact or jurisdictional bar that
cannot be waived and can be raised for the first time on appeal;
2) The statute of limitations is a non-jurisdictional affirmative defense that
can be waived if the defendant makes a knowing, intelligent and voluntary waiver
of the defense;
Medical Center, __ U.S. __, 133 S. Ct. 817, 825 (2013)). The Court in Musacchio
also held that a defendant may not raise the statute of limitations bar for the first
time on appeal. Musacchio, 136 S. Ct. at 718. This case and related federal circuit
court decisions are discussed in greater detail infra at *43-47.
42
3) The statute of limitations is a non-jurisdictional affirmative defense that
can be waived by the action of the defendant (e.g., a negotiated plea to a reduced
charge or lesser sentence); and
4) The statute of limitations is a non-jurisdictional affirmative defense which
is waived on direct appeal if not affirmatively raised in the trial court.
The latter category appears to represent the majority trend and modern view.
This is most evident from the trajectory of federal decisions which (similar to
Florida) historically regarded the statute of limitations as jurisdictional in nature
and therefore capable of being raised for the first time on appeal. The historical
view has evolved over the last three decades, and it can now be said (at least in the
federal courts) that the jurisdictional view has been supplanted by the view that the
statute of limitations is in the nature of an affirmative defense which must be
asserted in the trial court or is deemed waived.
Just one example of this evolution: In 1964, in Waters v. United States, 328
F.2d 739 (10th Cir. 1964), the Tenth Circuit held that the statute of limitations in
criminal cases “is not a mere limitation upon the remedy, but a limitation upon the
power of the sovereign to act against the accused.” Id. at 743. The court held that,
because the statute of limitations restrains the power to prosecute it was
jurisdictional and could be raised for the first time on appeal. Twenty-three years
later however, in United States v. Gallup, 812 F.2d 1271 (10th Cir. 1987), the
43
Tenth Circuit re-evaluated that position, abandoned its previous jurisdictional view
of the statute of limitations in favor of the majority position, and held: “It is well
settled that the statute of limitations is an affirmative defense which is waived
unless raised at trial.” Id. at 1280.
In United States v. Arky, 938 F. 2d 579 (5th Cir. 1991), the Fifth Circuit
addressed this issue directly for the first time. Arky noted that, while some courts
reasoned that the statute of limitations operated as a limit on the trial court’s
subject-matter jurisdiction and could therefore be raised for the first time on
appeal, such a view has been rejected by the majority of circuit courts and by legal
commentators. The Fifth Circuit joined the majority of other circuits in rejecting
this position, holding:
This court has never explicitly held that limitations defenses may not
be raised on appeal if not raised at trial. At the same time, we have
long adhered to the position that such objections are affirmative
defenses and not objections to jurisdiction. Capone v. Aderhold, 65
F.2d 130, 131 (5th Cir.1933). We now hold that the defendant must
affirmatively assert a limitations defense at trial to preserve it for
appeal. Logic as well as authority supports this position: if the
limitations defense is not jurisdictional, as we held in Aderhold, then
it is difficult to conceive why it alone, of all the defendant's
affirmative defenses, should not be waived if not asserted at trial.
Therefore, because Arky did not raise and develop his limitations
defenses at trial, he is precluded from raising them now.
Id. at 581-82.
In United States v. Lewis, 774 F.3d 837, 845 (5th Cir. 2014) the Fifth
Circuit expanded on its rationale for the holding in Arky:
44
[W]e have previously determined that a statute of limitations defense
is an affirmative defense that must be “affirmatively assert[ed] ... at
trial to preserve it for appeal.” [United States v. Arky, 938 F.2d 579,
582 (5th Cir. 1991]. This is because defenses such as a statute of
limitations defense will, in many cases, turn on disputed factual
issues. If defendants were allowed to raise a limitations defense after a
conviction, the prosecution would be prevented from introducing
evidence to rebut the defense. Cf. United States v. Cook, 84 U.S. 168,
179–80, 17 Wall. 168, 21 L.Ed. 538 (1872) (explaining that the
rationale for requiring the statute of limitations defense to be raised at
trial is to allow the prosecutor to present evidence in order to rebut the
defense). By requiring a defendant to “raise and develop” his statute
of limitations defense at trial, United States v. Solomon, 29 F.3d 961,
964 (5th Cir.1994) (citing Arky, 938 F.2d at 581–82), the prosecution
will have a chance to rebut the defendant's arguments with evidence
of its own. Although the facts surrounding Lewis's statute of
limitations defense are not in dispute, this does not change our
conclusion that a rule requiring all defendants to “affirmatively assert
a limitations defense at trial to preserve it for appeal,” Arky, 938 F.2d
at 582, is preferable to a case-by-case determination. Such a case-by-
case determination would leave defendants without a clear rule as to
when a statute of limitations defense must be raised.
Consistent with the Fifth Circuit’s decisions in Arky and Lewis, virtually
every federal circuit court considering the issue has adopted the view that the
statute of limitations is an affirmative defense that is waived on direct appeal if not
raised in the trial court. See United States v. Soriano-Hernandez, 310 F.3d 1099
(8th Cir. 2002) (surveying decisions from other circuits, adopting the majority
view that the statute of limitations is not a jurisdictional bar but an affirmative
defense that can be waived if not timely raised, and holding that defendant waived
the defense by failing to raise it at the time of his guilty plea); United States v.
Najjar, 283 F.3d 1306, 1308-09 (11th Cir. 2002) (addressing the issue for the first
45
time, the court observed that “every other circuit to have considered it has likewise
concluded that the expiration of the statute of limitations does not divest a district
court of subject matter jurisdiction, but rather constitutes an affirmative defense,
which the defendant can waive”; adopting this view, the court held that “the statute
of limitations is a matter of defense that must be asserted at trial by the
defendant”); United States v. Spector, 55 F.3d 22, 24 (1st Cir. 1995) (citing
Acevedo-Ramos v. United States, 961 F.2d 305 (1st Cir. 1992), and holding that
the statute of limitations is not a jurisdictional bar but a waivable affirmative
defense, and that the failure to raise the defense in a timely manner can result in a
waiver); United States v. Karlin, 785 F.2d 90, 92 (3d Cir. 1986) (aligning itself
with the Second, Fourth, Seventh, Ninth and D.C. Circuits in holding that “the
running of the statute of limitations does not defeat jurisdiction and that the failure
to assert the defense will constitute a waiver,” and noting that the view expressed
by the Tenth Circuit in Waters is contrary to that articulated by a majority of the
circuit courts of appeals); United States v. Meeker, 701 F.2d 685, 687 (7th Cir.
1983); United States v. Walsh, 700 F.2d 846, 855 (2d Cir. 1983); United States v.
Williams, 684 F.2d 296, 299 (4th Cir. 1982); United States v. Akmakjian, 647 F.2d
12 (9th Cir. 1981); United States v. Wild, 551 F.2d 418, 424 (D.C. Cir. 1977)
(holding that the statute of limitations is non-jurisdictional and defendant expressly
waived it; observing in dicta that a statute of limitations defense should be raised
46
no later than the trial). The Sixth Circuit was, for some time, the outlier in this
area. See Benes v. United States, 276 F.2d 99 (6th Cir. 1960) (construing the
criminal statute of limitations as a jurisdictional bar to prosecution, and holding
that the statute was not tolled by an agreement between the parties that the
government would not seek an indictment during the pendency of a related civil
case). The Sixth Circuit has since narrowed its holding in Benes. See United
States v. Del Percio, 870 F.2d 1090 (6th Cir. 1989) (recognizing that the statute of
limitations is not a jurisdictional bar, but rather a waivable affirmative defense that
does not affect the subject-matter jurisdiction of the court, but not reaching
whether the failure to assert the defense in the trial court constitutes a waiver).
The issue (at least in the federal arena) has now largely been put to rest by
the United States Supreme Court’s recent pronouncement in Musacchio, 136 S.Ct.
at 717:
[T]he statute-of-limitations defense becomes a part of a case only if
the defendant puts the defense in issue. When a defendant presses a
limitations defense, the Government then bears the burden of
establishing compliance with the statute of limitations by presenting
evidence that the crime was committed within the limitations period
or by establishing an exception to the limitations period. When a
defendant fails to press a limitations defense, the defense does not
become part of the case and the Government does not otherwise have
the burden of proving that it filed a timely indictment. When a
defendant does not press the defense, then there is no error for an
appellate court to correct—and certainly no plain error.
47
Turning to decisions of other states, we find less uniformity than the federal
courts, due at least in part to the varying provisions of state procedural rules and
statutes of limitations. See, e.g., Arizona v. Tom, No. 2 CA-CR 2016-0088-PR
(Ariz. Ct. App. April 20, 2016) (holding that statute of limitations is an affirmative
defense, is waived if not raised in the trial court, and does not require a knowing
and intelligent waiver); Kansas v. Cormack, 248 P.3d 784 (Kan Ct. App. 2011)
(holding that the statute of limitations in a criminal case is a non-jurisdictional
affirmative defense that is waived if not raised in the trial court); Adams v.
Hawai’i, 81 P.3d 394 (Haw. 2003) (statute of limitations is not jurisdictional and
waivable even in the absence of an express waiver); Illinois v. Speller, 360 N.E. 2d
1155 (Ill. App. Ct. 1977) (same); Pennsylvania v. Darush, 459 A.2d 727 (Pa. 1983)
(statute of limitations waived by the defendant’s failure to raise it in a pretrial
motion); Pennsylvania v. Rossetti, 863 A.2d 1185 (Pa. Super. Ct. 2004) (same).
See also Longhibler v. Missouri, 832 S.W. 2d 908 (Mo. 1992) (overruling prior
decision in Missouri v. Civella, 364 S.W. 2d 624 (Mo. Ct. App. 1963) and holding
statute of limitations is not jurisdictional and can be waived; a voluntary plea of
guilty waives all non-jurisdictional defects, including statute of limitations); James
v. Galetka, 965 P.2d 567 (Utah Ct. App. 1998) (holding statute of limitations is not
jurisdictional and can be waived by a voluntary plea of guilty). But see Ohio v.
Tolliver, 765 N.E. 2d 894, 899 (Oh. Ct. App. 2001) (holding statute of limitations
48
is jurisdictional and may be raised at any time, but noting other Ohio appellate
courts have held the statute of limitations is not jurisdictional and may be waived if
not asserted at the trial level); Tennessee v. Pearson, 858 S.W. 2d 879 (Tenn.
1993) (treating statute of limitations as non-jurisdictional and waivable, but only if
the waiver is knowing and voluntary); Washington v. Peltier, 332 P.3d 457 (Wash.
2014) (receding from previous decisions holding statute of limitations is
jurisdictional; treating statute of limitations as non-jurisdictional and holding
defendant may expressly waive the statute of limitations).
7. Policy considerations
As the United States Supreme Court observed in Toussie v. United States,
397 U.S. 112, 114-15 (1970):
The purpose of a statute of limitations is to limit exposure to criminal
prosecution to a certain fixed period of time following the occurrence
of those acts the legislature has decided to punish by criminal
sanctions. Such a limitation is designed to protect individuals from
having to defend themselves against charges when the basic facts may
have become obscured by the passage of time and to minimize the
danger of official punishment because of acts in the far-distant past.
Such a time limit may also have the salutary effect of encouraging law
enforcement officials promptly to investigate suspected criminal
activity.
These underlying policies are not implicated by a procedural requirement
which simply follows the general rule of preservation. Given that the statute of
limitations is not a jurisdictional bar to prosecution, there is no legal impediment to
requiring that a defendant who asserts that the crime as alleged in the information
49
is barred by the statute of limitations must raise the issue in the trial court to
preserve the issue for appeal. Such a procedural requirement strikes the proper
balance of the competing interests at stake in a criminal prosecution.
If a defendant is permitted to raise a statute of limitations claim for the first
time on appeal, a defendant might well choose not to file a motion to dismiss or to
otherwise challenge, at the trial court level, the timeliness of the prosecution.
Rather, a defendant, realizing that the information fails to include sufficient
allegations of tolling or extensions of the limitations period under section 775.15,
might instead wait until the jury returns a verdict and, if convicted, raise the issue
on appeal, which would likely result in a reversal of the conviction and a discharge
of the defendant.23 If we were operating under the 1872 version of the statute of
23 There is an ancillary question which I do not reach: If a defendant is permitted to
raise the issue for the first time on appeal, what is the proper remedy? If the
charging document fails to contain the necessary tolling language and, from the
allegations of the face of the information it appears that the prosecution was
commenced outside the limitations period, should the defendant be entitled to
reversal of the judgment and sentence and discharge, or should the defendant be
entitled only to a reversal of the judgment and sentence, thus providing the State
with an opportunity on remand either to amend the charging document or to
otherwise establish that the prosecution was timely commenced under section
775.15? The Florida Supreme Court has held that where the issue is raised for the
first time in a motion for new trial following conviction (which motion is denied
by the trial court and reversed on appeal), the appropriate remedy is a new trial, not
discharge. See Weinert v. State, 17 So. 570 (Fla. 1895): Warrace v. State, 8 So.
748 (Fla. 1891); McCoy v. State, 17 Fla. 193 (Fla. 1879). It would be difficult to
reconcile how a defendant under those circumstances would be entitled only to a
new trial while a defendant raising the statute of limitations for the first time on
appeal would be entitled to discharge.
50
limitations, which simply provided that all non-capital offenses must be prosecuted
within two years of the date of the offense, there might well be no need for an
evidentiary hearing or a determination of disputed facts. However, we are
operating under a statute of limitations provision that now contains at least
fourteen separate exceptions and tolling or extension provisions, each requiring
factual determinations.
More to the point, an appellate court presented with this issue, in the absence
of any opportunity for fact finding, would have no way of divining whether (or the
extent to which) any of these extensions or tolling provisions applies, or whether in
the face of a pretrial challenge the State would have been able to establish (and the
trial court would have been able to determine) the applicability of any statutory
extension or tolling provisions.24
I have considered the opposing view, that the State is well aware of its
obligation to allege all the necessary facts to establish the timely commencement
of a prosecution, and that the State should simply be held to that standard.
24Anomalously, a rule permitting a defendant to raise this issue for the first time
on appeal would prevent the State from establishing, for example, that the State
and defendant had expressly agreed to extend the statute of limitations in exchange
for forbearance of charges while the parties attempted to negotiate a resolution in
which defendant would enter into a pretrial diversion program. See, e.g., Doyle v.
State, 783 So. 2d 295 (Fla. 1st DCA 2001); Lowe v. State, 501 So. 2d 79 (Fla. 5th
DCA 1987); United States v. Wild, 551 F.2d 418 (D.C. Cir. 1977) (holding
defendant could validly waive statute of limitations in effort to prevent being
indicted during the completion of plea negotiations with the prosecution).
51
However, even if such a rule properly requires such facts to be pleaded in the
charging document, errors and omissions are inevitable in any such human
endeavor. The real question is not whether the State should be required to plead
those facts, but rather what result should follow when it fails to do so: should the
State be notified of, and afforded an opportunity to correct, such an error in the
trial court, or should the State be forever barred from proceeding with the
prosecution when the error is raised for the first time on appeal?
It seems to me unsound, both jurisprudentially and practically, to cling to a
rule that would reward a defendant’s failure to raise such a defect in the charging
document, by permitting a defendant to raise it for the first time on appeal.
Adherence to such a rule will likely require an appellate court to determine the
merits of the claim without affording the State the opportunity to develop a factual
record establishing a timely prosecution (or without affording the State an
opportunity to amend the information to allege facts establishing a timely
prosecution).25
25 A defendant who has waived the statute of limitations by failing to raise it in the
trial court is not left without a remedy; the defendant may seek postconviction
relief on the ground that trial counsel rendered ineffective assistance in failing to
raise the issue in the trial court. See, e.g., Harper v. State, 43 So. 3d 174 (Fla. 3d
DCA 2010); Byrd v. State, 754 So. 2d 191 (Fla. 3d DCA 2000); McGregor v.
State, 933 So. 2d 1244 (Fla. 1st DCA 2006); Morris v. State, 909 So. 2d 428 (Fla.
5th DCA 2005); Constantine v. State, 566 So. 2d 321 (Fla. 2d DCA 1990).
52
I conclude that a rule which permits a defendant to refrain from raising the
issue in the trial court, and permits the defendant to raise the issue for the first time
on appeal, impairs the fair and proper administration of justice, while failing to
promote any legitimate competing interest.
8. This case presents compelling support for a rule requiring a
defendant to raise the statute of limitations in the trial court
Indeed, this very case provides an even more concrete basis for adopting a
rule that a defendant cannot raise, for the first time on appeal, a claim that the
crime as alleged in the information is barred by the statute of limitations. The
offense charged in the instant information was armed burglary, and the information
read in pertinent part as follows:
EARVIN TYRONE SMITH, on or about September 15, 1990, in the
County and State aforesaid, did unlawfully enter or remain in a
structure, to wit: a dwelling located at 617 NORTHWEST 7th
STREET, Miami-Dade County, Florida, the property of E.H., without
the consent or E.H. as owner or custodian, the same being occupied
by E.H.; M.T. (MINOR); R.T. (MINOR)); the defendant having an
intent to commit an offense therein, to wit: SEXUAL BATTERY
and/or ROBBERY, and during the commission of the offense, said
defendant possessed a firearm or destructive device, in violation of s.
810.02(2)(b) and s. 775.087 and s. 777.011, Fla. Stat. . . .
Section 810.02(2), Florida Statutes (1990), the statute under which Smith
was charged, provides in pertinent part:
(2) Burglary is a felony of the first degree, punishable by
imprisonment for a term of years not exceeding life imprisonment. . .
if, in the course of committing the offense, the offender:
53
(a) Makes an assault or battery upon any person; or
(b) Is armed, or arms himself within such structure or conveyance,
with explosives or a dangerous weapon;
It is clear that, because the information charged Smith with armed burglary
under subsection (2)(b) (i.e., burglary while armed), the crime is a first-degree
felony punishable by life, and must be prosecuted within four years. §
775.15(2)(a), Fla. Stat. (1990). However, had Smith filed a motion to dismiss this
charge as barred by the statute of limitations, the State could validly have amended
the information to charge the very same burglary, but as a life felony (a crime for
which there is no statute of limitations, see section 775.15(1)), Florida Statutes
(1990)) given that Smith had committed a sexual battery during the burglary (the
other offense charged in the information, which the jury found Smith guilty of).
The State could have alleged, pursuant to section 810.02(2)(a), rather than
(2)(b)), that Smith committed a burglary and that, in the course of the burglary,
Smith made an assault or battery upon the victim. It is true that a burglary with an
assault or battery constitutes a first-degree felony, punishable by life; but by
amending the information to charge the offense as a burglary with an assault or
battery, rather than as an armed burglary, the State could then have included in the
information a separate allegation that, during the commission of the burglary with
an assault or battery, Smith possessed a firearm, providing a basis to reclassify the
burglary offense from a first-degree felony to a life felony, pursuant to section
54
775.087(1)(a), Florida Statutes (1990) (providing that “whenever a person is
charged with a felony, except a felony in which the use of a weapon or firearm is
an essential element, and during the commission of such felony the defendant
carries, displays, uses, threatens to use, or attempts to use any weapon or firearm. .
. the felony for which the person is charged shall be reclassified as follows: (a) In
the case of a felony of the first degree, to a life felony.”) This amended charge
(burglary with an assault or battery, reclassified to a life felony by possession of a
firearm) would not be time-barred, because a life felony is not subject to a statute
of limitations and “may be commenced at any time.” § 775.15(1), Fla. Stat. (1990).
Of course, if a defendant is not required to raise the statute of limitations
below, the State is never afforded the opportunity to amend the information to
charge a crime that has a longer, or, in this case, no statute of limitations. It may
well have been a strategic decision on the part of the defense not to move to
dismiss the burglary offense as time-barred, knowing that, by doing so, the State
would have had the opportunity to amend the charge to overcome any asserted
statute of limitations bar.26
26As noted in the majority opinion, Smith did move to dismiss several other counts
asserting they were barred by the statute of limitations, but did not raise such a
challenge to the crime of armed burglary. In fact, the State urges affirmance of the
conviction based upon this possible strategic decision to forego a statute of
limitations challenge to this charge, and noting that defendant would still have an
avenue for relief through the filing of a postconviction motion under rule 3.850.
See cases cited in footnote 25 supra.
55
CONCLUSION
On balance, and given the current composition of Florida’s statute of
limitations and tolling provisions, the broad discovery procedures and relaxed
pleading requirements, and the fact that the statute of limitations is in the nature of
an affirmative defense, I conclude that the more well-reasoned view, as
represented by the United States Supreme Court and the overwhelming majority of
federal decisions in this area, holds that the statute of limitations is not
jurisdictional in nature, and that a defendant cannot raise, for the first time on
appeal, the claim that a conviction for the crime as charged in the information or
indictment was barred by the statute of limitations. Questions regarding
extensions or tolling provisions under the statute of limitations generally present
factual issues; resolution of these issues will ordinarily require the production of
evidence, the development of a record, and the determination of disputed issues of
fact, proceedings which are uniquely suited to the trial court. It is difficult to
conceive how an appellate court, faced with a bare assertion of a time bar raised
for the first time on appeal, and without an adequate record (or opportunity for the
State to address or the trial court to adjudicate) could reasonably and reliably
resolve the issue. Moreover, because I believe that the statute of limitations is
most accurately viewed as an affirmative defense,27 there is no legal impediment to
27Though I describe the statute of limitations as an affirmative defense, it is
something of a hybrid. Surely it is in the nature of an affirmative defense to the
56
the procedural requirement that a defendant raise the issue in the trial court in order
to preserve it for appeal. Such a requirement permits the State to properly respond
to the challenge (either by amendment of the charge or by establishing a timely
prosecution), allows the necessary factual determinations to be made in the trial
court, and ensures an adequate record for effective appellate review.
For all of these reasons, I believe the Florida Supreme Court should answer
the certified question in the affirmative, and hold that a defendant, who claims that
the offense as charged in the information is barred by the statute of limitations,
must raise the issue in the trial court in order to preserve the issue for direct appeal.
ROTHENBERG, SALTER and SCALES, JJ., concur.
extent that it does not itself deny the underlying acts constituting the offense, but
rather contends that, even if the acts comprising the crime were committed by the
defendant, the defendant may not be convicted of the crime because the
prosecution was not timely commenced. On the other hand, it is not an affirmative
defense in the sense that the defendant must shoulder some burden of proof before
it shifts to the State. Rather, the defendant need only allege, and the charging
document need only evidence on its face, that the prosecution was commenced on
some date after the statute of limitations had expired. The burden would be on the
State to establish that the prosecution was nevertheless timely commenced, based
upon some statutory tolling or other basis for extension or waiver of the statute.
57