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519 So. 2d 1128

Docket No. 86-2109.

Gunn v. State

Doris J. GUNN, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided February 11, 1988.

District Court of Appeal of Florida · decided 1988-02-11

Cited by 5 later decisions — most recently March 1995

5 state decisions

Key passage — most relied on by later courts

“(5) 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 diligent search or the defendant's absence from the state shall be considered. If, however, an indictment or information has been filed within the time period prescribed in this section and the indictment or information is dismissed or set aside because of a defect in its content or its form after the time period has elapsed, the time for commencing prosecution shall be extended three months from the time the indictment or information is dismissed or set aside. (6) The period of limitation does not run during any time when the defendant is continuously absent from the state or has no reasonably ascertainable place of abode or work within the state, but in no case shall this provision extend the period of limitation otherwise applicable by more than 3 years.”

quoted by 1 later decision, including 538 So. 2d 148 - Sherley v. State

Relies on 505 So. 2d 1336 - State v. Fields

Good law ✅— No negative treatment on recordhow we know

Decided 1988-02-11

View the full empirical analysis of this case →

¶1James B. Gibson, Public Defender, and Kenneth Witts, Asst. Public Defender, Daytona Beach, for appellant.

¶2Robert A. Butterworth, Atty. Gen., Tallahassee, and Pamela D. Cichon, Asst. Atty. Gen., Daytona Beach, for appellee.

¶3BEVERLY, V.Q., Associate Judge.

¶4Doris Gunn appeals the trial court's order denying her motion to dismiss the state's information charging her with obtaining unemployment compensation by fraud.

¶5At issue is whether prosecution was commenced before the statute of limitations had run.

¶6The crime allegedly occurred between February and April, 1981. The information was filed two years and nine months after the offense charged, but within the three-year statute of limitations provided by section *1129 775.15(2)(b), Florida Statutes (1985) for prosecution of third degree felonies. The capias was served in May 1986, five years after commission of the offense, and two years and three months after the information was filed.

¶7The appellant resided in the town of Apopka, Florida throughout the periods involved here and had the same address for several years. There was no evidence in the record that the State had made any efforts to locate or serve Gunn prior to the actual date of service.

¶8Section 775.15(5), Florida Statutes (1985) provides:

"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 diligent search or the defendant's absence from the state shall be considered."

¶9The Florida Supreme Court recently considered this section in State v. Fields,505 So.2d 1336 (Fla. 1987) and held that "the word `executed' in section 775.15(5) can only mean service on the defendant."

¶10From the record in this case, we conclude that the capias was executed after an unreasonable delay, and after the statute of limitations had run. The trial court should have granted Gunn's motion to dismiss.

¶11We therefore reverse the appealed order and remand for further proceedings consistent with this opinion.

¶12REVERSED and REMANDED.

¶13DAUKSCH and COWART, JJ., concur.

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