Terrence O'MALLEY, Petitioner,
v.
Marvin U. MOUNTS, Jr., as Circuit Judge of the 15th Judicial Circuit, Respondent.
District Court of Appeal of Florida, Fourth District.
Richard L. Jorandby, Public Defender, and Randall L. Berman, Asst. Public Defender, West Palm Beach, for petitioner.
Robert A. Butterworth, Atty. Gen., Tallahassee, and John Tiedemаnn, Asst. Atty. Gen., West Palm Beach, for respondent.
ON MOTION FOR CLARIFICATION
PER CURIAM.
Respondent's motion for clarification is granted, and the following opinion is substituted in place of the opinion issued on June 12, 1991.
This is a petition for writ of prohibition, seeking to prevent prosecution of petitioner pursuant to a July 12, 1989, multi-count indictment for grand theft, RICO, issuing *438 corporate bonds with the intent to defraud, and for an organized scheme to defraud.
Petitionеr moved to dismiss the six counts against him in a fifteen-count indictment against multiple defendants, based on a claim that the applicable statutes of limitations had run. After two hearings on the motion, the trial cоurt denied it, precipitating the present petition, which we grant.
Petitioner received civil surety bоnds from Pioneer Bonding and Insurance Company, which was the general agent, and wrote bonds for American Druggists Insurance Company. Those bonds were used by petitioner to secure personal loans of $150,000 and $90,000 from North Carolina National Bank (NCNB), which loans were disbursed on October 14, 1983 and May 4, 1984, respeсtively. When petitioner defaulted on his loans, on July 18, 1984, NCNB demanded payment from American Druggists based on thе civil surety bonds guarantee. American Druggists informed NCNB by letter that Pioneer, the general agent, had exсeeded its authority, or had no authority, to issue the bonds, and denied payment.
In Counts 4 and 5 of the indictment, the state asserts that the appellant committed the offense of issuing corporate obligations beyond the authorized amount "on or about October 14, 1983 through and including July 18, 1984." The statute of limitations for suсh an offense is three years from the date of commission of the act, section 775.15(2)(b), Florida Statutеs (1987).
Section 775.15(3)(a), Florida Statutes (1987), reads:
(3) If the period prescribed in subsection (2) has expired, a prosecution may nevertheless be commenced for:
(a) Any offense, a material element of which is either fraud or a breaсh 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 not a party to the offensе, but in no case shall this provision extend the period of limitation otherwise applicable by mоre than 3 years. [Emphasis added].
The state did not bring the indictment until July 12, 1989, well after the limitations period. We agrеe with petitioner's contention that discovery occurred when American Druggist responded to NCNB's demand on August 2, 1984, and informed it in a letter that Pioneer had exceeded its authority, or lacked authority, in issuing the bonds. Thus, the statute of limitations expired as to Counts 4 and 5.
In Counts 11 and 12 of the indictment, the state asserts that рetitioner committed grand theft. The statute of limitations for grand theft is five years. See § 812.035(10), Fla. Stat. (1987). The state did not bring thе indictment until July 12, 1989.
Petitioner contends that the offenses occurred on October 13, 1983 and May 4, 1984, the dates hе received the loans. The state does not contest this, but argues that the offenses continued until July 18, 1984, the date рetitioner defaulted on the loans. It contends that section 812.014, Florida Statutes, as amended in 1987, is a сontinuing offense statute, a position with which we disagree. See Toussie v. United States,
A reading of section 812.014, Florida Statutes (1987), does not suggest that the legislature intended grand theft to be a continuing offense. It provides only that a person is guilty of grand theft if he knowingly obtains or uses, or endeavors to obtain or to use, the property оf another with the intent to either temporarily or permanently deprive the other person оf a right to the property or a benefit therefrom or appropriate the property to his own use or the use of any person not entitled thereto. That language is the same as the language of the preamended version of the statute. In State v. King,
In Count 1 of the indictment, petitioner was charged with racketeering, and in Count 15, he was charged with committing an organized sсheme to defraud. The statute of limitations for the offenses is five years from the date of commissiоn of the crime as to the racketeering charge, section 895.05(10), Florida Statutes (1987), and four years аs to the offense of committing an organized scheme to defraud, section 775.15(2)(a), Florida Statutes (1987). Whilе the state stipulated that petitioner committed no criminal acts subsequent to July 18, 1984, petitioner mаintained that the alleged criminal acts occurred on October 13, 1983 and May 4, 1984, barring prosecutiоn on those counts after October 13, 1988, for Count 15, and May 4, 1989, for Count 1. The state did not bring the indictment until July 12, 1989. We agree with petitioner and grant the petition as to Counts 1 and 15.
GLICKSTEIN, C.J., and HERSEY and DELL, JJ., concur.