The statute of limitations acts as a bar on the prosecution of criminal offenses, where prosecution is not commenced within a certain period of time. As a general principle, the clock begins to tick the day after the crime is committed. The full text of Florida's statute of limitations in criminal cases is set forth in section 775.15. This post presents a generalized overview of the time limitations applicable to the various offense levels and classifications, as set forth in the statute, as well as the exceptions. Specific questions should be directed to an experienced criminal defense attorney in the St. Petersburg/ Clearwater/ Tampa area.
Prosecution of a criminal offense is typically initiated in one of two ways. The first is where a probable cause is arrest is made at or near the time the alleged crime is committed. Under these circumstances, the investigating law enforcement officer makes the arrest and refers the matter to the state attorney's office for a formal charging decision. If the assigned prosecutor determines that there is reasonable likelihood of successful prosecution, he or she will file a charging document which, in Florida, is called an "information" (in first degree murder cases, the charging document is called an "indictment", which is filed after the case is presented to a grand jury). Under these circumstances, prosecution is "commenced" when the charging document is filed with the clerk of court.
The second manner in which prosecution is initiated is through a "non-arrested" investigation. Here, the responding officer refers the matter to the state attorney for prosecution without having made a physical arrest. If the assigned prosecutor determines that there is a reasonable likelihood of successful prosecution, he or she will file an information and a warrant will be issued for the defendant's arrest (in a first degree murder situation, the warrant is issued if the grand jury returns a true bill and after the indictment is filed). There are a number of reasons why a physical arrest is not made at the time the alleged crime is committed. It may be that the crime is a misdemeanor and was not committed in the officer's presence. Another reason may be that the officer does not believe he or she has probable cause to make an arrest and more investigation, by the state, is needed. The most obvious reason, however, is that the accused person cannot be located. Under these circumstances, prosecution is commenced when the charging document is filed provided that the warrant issued on the charging document is executed, or returned, without "unreasonable delay".
In this second scenario, as long as the warrant remains outstanding, prosecution has not commenced. If the warrant remains unexecuted beyond the period of limitations for that particular offense, then the state may be barred from proceeding. It should be noted that the statute gives the state more time when the defendant has no reasonably ascertainable residence in Florida or is living outside the state of Florida. Where the accused has no reasonably ascertainable address, the period of limitation otherwise applicable to the offense is extended by up to three years. As of 1997, the period if limitation is tolled for any period during which the accused is residing outside the state of Florida, provided a charging document has been filed.
The periods of limitation are as follows:
- A prosecution for a capital felony, life felony, or felony that resulted in death may be commenced at any time. These typically include homicide cases.
- A prosecution for a felony of the first degree must commenced within four years after it is committed. First degree felonies include offenses such as burglary/battery, armed burglary, many drug trafficking offenses, and many classifications of sexual battery offenses.
- A prosecution for any other felony (i.e. second and third degree felonies) must be commenced within three years after commission. Second degree felonies include offenses such as sale or delivery of controlled substances, residential burglary, dealing in stolen property, and many classifications of lewd and lascivious molestation offenses. Third degree felonies include such offenses as possession of controlled substances, burglary to a conveyance, felony battery, and theft.
- A prosecution for a misdemeanor of the first degree must commenced within two years after it is committed. First degree misdemeanors include offenses such as DUI and battery.
- A prosecution for a misdemeanor of the second degree or a non-criminal violation must be commenced within one year after it is committed. Second degree misdemeanors include offenses such as disorderly conduct, disorderly intoxication, and trespass.
There are, however, some exceptions to these general principles. For example, a prosecution for perjury in an official proceeding that relates to a capital felony may be commenced at any time. Prosecution for a felony that resulted in injury to any person, when such felony arises from the use of a destructive device, may be commenced within ten years. There are a number of other exceptions for fraud, abuse of elderly persons, and sexual offenses committed on minors. The statute also makes exception for the period of limitation otherwise applicable where the identity of the accused is established through DNA testing.
Over the years, Florida's statute of limitations in criminal cases has become more complex and has made room for a number of exceptions and/or extensions that previously did not exist. If you have been charged with a criminal offense in the Tampa Bay area, including St. Petersburg, Clearwater, or Tampa, and think there may be a viable statute of limitations defense in your case, you are welcome to contact our office at any time. For a more detailed discussion of Florida's statute of limitations in criminal cases, see the "Statute of Limitations as a Defense" section of our website.