Statute of Limitations is Jurisdictional, But We Wish It Wasn't, Hint Hint Florida Supreme Court.

Victor Guzman v. State, 3D14-776, Dec. 21, 2016

Earvin Smith v. State, 3D14-1635, Dec. 21, 2016

Held:  An argument that convictions are barred by the statute of limitations can be raised for the first time on direct appeal and requires vacation of the underlying convictions.  An amended information which brings new charges does not relate back to an original information for statute of limitations purposes.

Discussion:  In both companion cases, the Third vacates convictions for crimes which are barred by the statute of limitations.  The Third does so reluctantly and because of their own precedent in Key v. State, 990 So.2d 529 (Fla. 3rd DCA 2008).

In Guzman, the defendant was originally charged in 2004 with crimes that occurred in 2001, specifically attempted first degree felony murder, lewd and lascivious battery on a 12-16 year old, and sexual battery.  In 2010, the State filed an amended information, charging attempted felony murder, lewd and lascivious battery on a 12-16 year old,aggravated battery with great bodily harm.  The defendant was tried and convicted on this amended information, and trial counsel did not raise statute of limitations as an issue or defense.  

Count One, the attempted felony murder, was barred because it was originally charged as attempted first degree felony murder, which is not a crime.  Because it was not a crime, the 2010 information charging attempted felony murder (as opposed to attempted first degree felony murder, which is not a crime because one by definition doesn't intend to commit felony murder) is a new charge and doesn't relate back to the 2004 charge.  Thus, the four year statute of limitations for first degree felonies ran before 2010.  Count Two, the lewd and lascivious battery, has a three year statute of limitations which ran before the first charges were filed.  Count Three, the aggravated battery with great bodily harm, was a new charge (the original charge was sexual battery), and if it had been charged in the first place, it would have been barred by the three year statute of limitations.

In Smith, the Court reaches the same result after considering the case en banc. There, the defendant was sixteen in 1990 when he allegedly committed the crimes, and thirty-six when he was arrested in 2011.  His counsel moved to dismiss some counts on statute of limitations grounds, but not an armed burglary count, despite the fact that that is a first degree felony punishable by life, with a four-year statute of limitations, which was obviously well exceeded.  This count was reversed and vacated on appeal, despite the lack of preservation below.

The majority opinion notes that a violation of a statute of limitations is not always fatal to a conviction.  For instance, if a defendant negotiates a plea to a charge that is barred by the statute of limitations (perhaps to avoid a conviction for a more serious offense that is not barred), this is permitted.  Similarly, defendants can waive statute of limitations to have a jury consider lesser included offenses that would otherwise be time-barred, although in this situation the defendant must be personally colloquies on the fact that the lessers would otherwise be barred by the statute of limitations.  

The Third notes that it has reached conflicting results on the actual question presented, whether a statute of limitations defense as to the charge in the information is waived by failure to object.  Ultimately, it relies on Florida Supreme Court precedent to hold that such a defect is fundamental and an objection is not required.  However, the Court notes that absent such precedent it would find the opposite, and certifies the question for Supreme Court review.

Judge Emas writes a lengthy concurrence, clearly hoping to influence the result of the hoped-for Supreme Court review.  He traces the history of the statute of limitations in Florida, notes that in some other states, and in the federal system, a violation of the statute of limitations is not jurisdictional or fundamental and must be objected to (Musacchio v. United States, 136 S.Ct. 709 (2016)), and ultimately argues that on policy grounds the precedent finding that a statute of limitations defense does not need to be preserved should be reviewed and reversed.  He notes that Florida's statute of limitations is now much more complicated and fact-intensive than it was when some of the leading cases came out (for instance, the limitations period can be tolled when the defendant is continuously absent from Florida, does not run when a "continuing course of conduct" is afoot, and starts anew when DNA evidence is discovered in some cases, all of which might require factual inquiries rather than simply subtracting the date of the offense from the date of the charge).  Judge Emas notes that venue is not jurisdictional and must be objected to to be reviewed on appeal, and he does not see a persuasive reason why venue should be treated differently than the statute of limitations.  Generally, Judge Emas is concerned that a defendant will "game" the statute of limitations issue, purposely not objecting so as to avoid the State amending the information to validly charge an offense, and then if convicted be able to succeed on appeal.  Judge Emas says that the opposing view, that the State should know statute of limitations issues and properly charge defendants, ignores that "errors and omissions are inevitable in any human endeavor" and the State should have thus have its error pointed out to it.  Judge Emas is joined by Judges Rothenberg, Salter, and Scales, meaning that six judges agreed with the result of the case but were not willing to join Judge Emas's recommendations to the Florida Supreme Court.

My thoughts:  First of all, the result is clearly right based on Florida Supreme Court precedent, as the Third, to its credit, acknowledges.  All an appellate court can properly do in a situation where they disagree with Florida Supreme Court precedent is what they did here, follow the precedent but express why they believe reconsideration is in order.

I doubt that the Florida Supreme Court will reconsider this. I think that statute of limitations is generally considered by lawyers and judges to be jurisdictional, and although Judge Emas puts forth a very impressive effort in his well-written and impressively-researched concurrence, at the bottom it rests on an analogy between venue and statute of limitations that I don't think is supportable (venue can be waived because a defendant may agree that the crimes were committed within the county, whereas how can a defendant agree that he committed the crime within the necessary time period if he clearly didn't); and a policy decision that the mistakes of prosecutors should be forgiven and the onus but on defense attorneys to catch said mistakes (if the people charging the crime can't get it right, why is it the defense's job to do so, and if prosecutors are to be forgiven for making mistakes as such is natural in a "human endeavor" like criminal litigation, why are defendants penalized for their attorney's failure to catch a clear statute of limitations violation?).  I am not convinced by the "gaming the system" rationale, which seems to reflect a view of defense attorney's efforts that I don't see often borne out in reality.  It would be quite a gamble to intentionally ignore a valid statute of limitations defense because the State could potentially fix it, and thus go to trial on a serious felony charge and hope that years later (these were 2004 cases) the defendant would be set free.  I don't think defense attorneys, at least in the vast majority of cases, are making such calculations.  The Guzman case is a good example.  Clearly defense counsel missed an obvious statute of limitations defense that could only have helped his client to have raised.

It will be interesting to see whether the Florida Supreme Court reviews and whether they engage with Judge Emas.  Even though I disagree with the reasoning, his opinion demonstrates that he is operating on a high level.  I'm sure he would like consideration for the Court that would review this decision, and I think he deserves to get it.

Youthful Offender Sentencing Allows All Sorts of Crazy Things, Like Withholds for First Degree Felonies.

Carlos A. Pacheco-Velasquez v. State, 3D15-1403, Dec. 21, 2016

Held:  Youthful offenders can have adjudication withhold for a first degree felony punishable by life.

Discussion:  A statute (775.08435(1)(a)) requires adjudication, rather than a withhold, for capital, life, or first degree felony offenses.  Here, the defendant was sentenced as a youthful offender for robbery with a weapon, a first degree felony punishable by life.  He was sentenced to a withhold and a typical youthful offender sentence of boot camp and six years of supervision.  The Court says that the youthful offender act, and its statement that "in lieu of other criminal penalties authorized by law"  the Court can impose sanctions "with or without an adjudication of guilt".  The Court cites various other examples of situations where the YO statute supersedes otherwise valid statutory sentencing provisions.

My thoughts:  Although not helpful to the defendant in this case, who is apparently going to be deported (remember, the federal government doesn't care about withholds, viewing them as indistinguishable from adjudications and as convictions of the underlying offense), this is the right result.  Youthful offenders are exempted from other sentencing provisions, a fact that generally helps our clients and should be remembered and acted upon when our clients qualify.