State v. Perez
72 So. 3d 306
| Fla. Dist. Ct. App. | 2011Background
- State appeals dismissal of grand theft charge against Perez on statute of limitations grounds.
- Information filed November 27, 2002 alleging theft between May 1 and August 31, 2000.
- Capias issued; limitations period governed by section 812.035(10) (theft-specific statute).
- Section 812.035(10) provides a five-year period, extendable by up to one year for continuous absence from the state.
- Period began September 1, 2000; information filed within the period; capias executed September 9, 2010.
- Perez conceded a six-year maximum period due to absence from Florida; State urged tolling under general sections 775.15(5)(b)-(6).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does 812.035(10) trump 775.15 tolling provisions? | Perez argues 775.15 tolls apply; absence tolling indefinite. | State argues 812.035(10) controls and tolling applies; six-year maximum. | 812.035(10) controls over 775.15 tolling. |
| Can absence tolling extend beyond six years under 775.15 when 812.035(10) applies? | Perez's absence yields six-year limit under 812.035(10). | State seeks automatic, indefinite tolling via 775.15(5)-(6). | Tolling does not extend beyond the six-year maximum; 812.035(10) controls. |
| Did the State exercise diligence in executing the capias? | Information was timely; capias execution delayed by State due to absence issues. | State delayed execution; no diligence in locating Perez. | Trial court's finding of lack of diligent efforts upheld; delay not excused. |
Key Cases Cited
- State v. Telesz, 873 So.2d 1236 (Fla. 2d DCA 2004) (812.035(10) controls for theft; no extraneous tolling)
- Brown v. State, 674 So.2d 738 (Fla. 2d DCA 1995) (limitations begin day after offense; 775.15 interplay)
- Netherly v. State, 804 So.2d 433 (Fla. 2d DCA 2001) (liberal construction of statute of limitations in favor of accused)
- Williams v. State, 707 So.2d 897 (Fla. 2d DCA 1998) (diligence considerations in capias timing)
- Schuster v. State, 21 So.3d 117 (Fla. 5th DCA 2009) (specific theft limitations control over general tolling)
- Guthrie v. State, 567 So.2d 544 (Fla. 2d DCA 1990) (specific vs general tolling provisions)