Barry G. Feingold, Coral Springs, for petitioner.
Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for respondent.
Cheryl Ann Beyer petitions for a writ of prohibition seeking to prevent the Broward circuit court from prosecuting her in two 1988 cases: 88-16215CF10A— (1) obtaining property by worthless check and (2) grand theft; and 88-11477CF10A— (1) uttering a forged instrument; (2) forgery; and (3) grand theft. Petitioner allegedly committed the offenses in February 1988, more than twenty-two years ago. The State filed the informations charging petitioner in these cases in August and June 1988 respectively. She was never arrested on a capias or served with a summons. She alleges that she was never given notice, constructive or actual, of the pending charges and that she learned of the pending charges for the first time in 2010 during a background check to obtain her real estate license.
From May until December 1988, petitioner was in federal custody in the South Florida region awaiting transport to California on fraud charges. The probable cause affidavit reflects that the State was aware that petitioner was in federal custody during this time. She remained in federal custody until September 1991 when she was released. Florida lodged no holds or detainers, and the State made no attempt to serve her with process during this time.
Petitioner alleges that from September 1991 to 2006, she lived in California and has lived in Colorado since 2006. She has maintained a driver's license, purchased homes, applied for and received a marriage license, married and started a family, maintained employment, and regularly paid her taxes. When she learned of the pending charges, she retained counsel who moved to dismiss based on the statute of limitations because the capias was not served within a reasonable time and because the State failed to conduct a diligent search.
After receiving a written response from the State, the trial court denied the motions without holding an evidentiary hearing. The State erroneously argued that State v. Perez, 952 So.2d 611 (Fla. 2d DCA 2007), presented identical facts and that the statute of limitations was tolled because petitioner was continuously out of the state and in the custody of another sovereign. Petitioner filed motions requesting an evidentiary hearing and explaining that the statutes relied on to deny her motion had been amended in 1997 and that she was entitled to application of the statute in effect at the time of her alleged offenses which did not contain the same tolling provisions.
The court denied the motion and refused to hold a hearing. This petition follows.
A petition for writ of prohibition is a proper remedy to prevent a prosecution that is barred by expiration of the statute of limitations. Lett v. State, 837 So.2d 614 (Fla. 4th DCA 2003). The statute in effect at the time of the alleged offense controls. Id. at 615 (citing State v. Shamy, 759 So.2d 728 (Fla. 4th DCA 2000)).
Section 775.15, Florida Statutes (1987), applies to these February 1988 offenses. Pursuant to this statute, a prosecution for a second or third-degree felony had to be commenced within three years after it was committed. § 775.15(2)(b), Fla. Stat. (1987).
A prosecution 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 ...