Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D21-1326 _____________________________ DUDLEY LAMONT MACKEY, Petitioner, v. STATE OF FLORIDA, Respondent. _____________________________ Petition for Writ of Prohibition—Original Jurisdiction. January 26, 2022 BILBREY, J. Petitioner seeks to prohibit the trial court from proceeding with his two felony drug cases contending that the three-year statute of limitations has long since run. See § 775.15(2)(b), Fla. Stat. (2012) (providing that for any felony below a felony of the first degree prosecution “must be commenced within 3 years” after the crime is committed). * Petitioner moved to dismiss the charges, and after an evidentiary hearing, that motion was denied by the trial court. Petitioner now seeks relief from our court. Since there was * “[T]he statute of limitations in effect at the time of the alleged crimes” sets the applicable limitations period. State v. Soebhag, 163 So. 3d 672, 673 (Fla. 2d DCA 2015). no diligent search for the Petitioner for almost five years, the statute of limitations has run, and we grant the petition and order Petitioner discharged. In January 2013, two bench warrants issued for the arrest of Petitioner for drug offenses which allegedly occurred in June 2012 in Alachua County. Those warrants were not served on Petitioner. In May 2013, the State filed informations in case numbers 01- 2013-CF-078-A and 01-2013-CF-079-A. Each information charged Petitioner with one count of sale of a controlled substance and one count of possession of cocaine. The sale charges were second degree felonies, while the possession charges were third degree felonies. See § 893.13(1)(a)1., (6)(a) (2012). In June 2013, capiases were issued in each case. Those capiases were not served on Petitioner until July 2020. In situations, as here, where a person has not previously been arrested or served with a summons, prosecution commences when an indictment or information is filed provided that “the capias . . . is executed without unreasonable delay.” § 775.15(4)(b), Fla. Stat. (2012). “In determining what is reasonable, inability to locate the defendant after diligent search or the defendant’s absence from the state shall be considered.” Id. A court must liberally construe the provisions of the applicable statute of limitations in favor of the accused. Reino v. State, 352 So. 2d 853, 860 (Fla. 1977). The State must prove by competent, substantial evidence that prosecution is not barred when a defendant raises whether the applicable statute of limitations has expired. Robinson v. State, 153 So. 3d 313, 314 (Fla. 1st DCA 2014); Williams v. State, 833 So. 2d 297 (Fla. 1st DCA 2002). Here, the statute of limitations started running in June 2012 when the crimes were allegedly committed. The informations filed in May 2013 would have commenced prosecution, obviating any statute of limitations issues, so long as the capiases were executed without unreasonable delay. See Coleman v. State, 655 So. 2d 1239, 1239 (Fla. 1st DCA 1995). Petitioner contends that for almost five years there was no diligent search by the State, and as such, the State has failed to show the execution of the capiases were not unreasonably delayed. We agree. 2 “A petition for writ of prohibition is a proper method to challenge before trial the denial of a motion to dismiss a criminal prosecution that is barred by the statute of limitations.” Morelli v. State, 198 So. 3d 997, 999 (Fla. 4th DCA 2016) (citations omitted); see also MacKinnon v. State, 891 So. 2d 1175, 1175–76 (Fla. 1st DCA 2005). The trial court’s findings in denying a motion to dismiss due to expiration of the statute of limitations are subject to a writ of prohibition if such findings are not supported by competent, substantial evidence. Morelli, 198 So. 3d at 999. At the hearing on Petitioner’s motion to dismiss, the State called Sergeant Barrett Boyette of the Alachua County Sheriff’s Office (ACSO) Warrants Bureau as its sole witness. Sergeant Boyette had no personal knowledge of the search for Petitioner but was able to testify to certain business records kept by the ACSO. The trial court had evidence through Sergeant Boyette of the diligent search for Petitioner until April 2014. For the remainder of 2014, 2015, and 2016, the only purported “search” for Petitioner was a single advertisement each year in the Gainesville Sun newspaper. For 2017 and 2018, there was no evidence presented of any search or even a newspaper advertisement. The trial court had evidence that the diligent search resumed in January 2019, leading to Petitioner’s arrest in July 2020. Sergeant Boyette also testified to the search by the ACSO of the National Crime Information Center (NCIC) database to show that Petitioner was out of state on two dates. According to Sergeant Boyette, the NCIC search showed that Petitioner was arrested in Vidalia, Georgia, in November 2016 and that arrest included charges from a January 2015 incident in Vidalia. The State maintained that Petitioner’s absence from the State tolled the statute of limitations. Petitioner’s counsel lodged a hearsay objection to Sergeant Boyette’s testimony about the NCIC search, but the trial court overruled the objection. Still, Sergeant Boyette did not have any personal knowledge of the NCIC database. Nor did he testify about how NCIC records were created, whether they were created at or near the time of the event by a person with knowledge, or whether they were kept in the ordinary course of a regularly conducted business activity. Thus, the State did not show the 3 elements required for application of the business records exception as to the results of NCIC search. See Yisrael v. State, 993 So. 2d 952, 956–57 (Fla. 2008). Accordingly, the search results from the NCIC database should have therefore been excluded and do not amount to competent, substantial evidence of any absence by Petitioner from the State. But even considering the NCIC database, there was insufficient evidence to show that Petitioner was absent from the State of Florida for any time other than one day in January 2015 and one day in November 2016. “The period of limitation does not run during any time when the defendant is continuously absent from the state. . . .” § 775.15(5), Fla. Stat. Here, there was no evidence to show Petitioner was continuously absent from the State. For instance, no evidence was presented to show Petitioner was incarcerated or resided in Georgia for any period between April 2014, when the diligent search was suspended, and January 2019, when the search resumed. Cf. State v. Soebhag, 163 So. 3d 672, 674 (Fla. 2d DCA 2015) (holding that the statute of limitations was tolled by the defendant’s continuous absence from the State when evidence showed he was in the Netherlands). At best, the NCIC results showed Petitioner was absent from the State for two days during an almost five-year period of no diligent search. Proof of two days out of Florida does not equal proof of a “continuous absence” to toll the statute of limitations. In proving the diligence required to show a reasonable delay in the service of a capias, the State must show that it investigated leads and checked obvious sources of information. Coleman, 655 So. 2d at 1239 (citing State v. Mack, 637 So. 2d 18 (Fla. 4th DCA 1994)); see also Cunnell v. State, 920 So. 2d 810, 813 (Fla. 2d DCA 2006). “Obvious sources of information [for a diligent search] include the telephone book, the city directory, driver’s license records, vehicle license records, property tax records, voter’s registration records, the probation office, local utility companies, law enforcement agencies, state attorney’s office, schools, armed forces, and prison system.” Mack, 637 So. 2d at 19–20 (quoting Kyte v. State, 49 Fla. Supp. 2d 40, 42 (Fla. 5th Cir. Ct. 1991)). “Other sources are relatives of the defendant and witnesses in the case.” Id. at 20. Agents of the State are expected to use obvious sources of information, including internet searches, and this aligns 4 with the requirement that the diligence requirement be liberally construed in favor of the accused. Norton v. State, 173 So. 3d 1124, 1128 (Fla. 2d DCA 2015). “This is not to suggest that the State must exhaust every source of readily available information to satisfy its burden of demonstrating a diligent search.” Id. (citing Mack, 637 So. 2d at 20). Here, however, there was no evidence that the State used any of these resources in searching for Petitioner from April 2014 until January 2019. The Gainesville Sun advertisements alone cannot show diligent search under Coleman, Cunnell, Mack, and Norton. And even if the NCIC records are considered, the proof of absence from the State for two days does not excuse the failure to engage in diligent search for almost five years. “In short, the state failed to establish a diligent search, and the delay in executing the capias was therefore unreasonable. Consequently, the applicable limitations period expired before the prosecution commenced.” Coleman, 655 So. 2d at 1239. “The sole purpose of a statute of limitations in a criminal context is to prevent the State from hampering defense preparation by delaying prosecution until a point in time when its evidence is stale and defense witnesses have died, disappeared or otherwise become unavailable.” Young v. State, 784 So. 2d 1249, 1251 (Fla. 1st DCA 2001) (citations omitted). Petitioner should not have to face charges from an incident that occurred nine and a half years ago, when the State presented insufficient evidence of a diligent search for almost five of those years. As a result, we grant the petition for writ of prohibition and order that Petitioner be discharged based on the three-year statute of limitations having run in case numbers 01-2013-CF-078-A and 01-2013-CF-079-A. PETITION GRANTED; DISCHARGE ORDERED. ROBERTS, J., concurs; B.L. THOMAS, J., dissents with opinion. 5 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ B.L. THOMAS, J., dissenting. I respectfully dissent. The State did not commit unreasonable delay in attempting to serve Petitioner with capiases, where he knew he had pending charges from a bench warrant, refused to turn himself in, and evaded authorities for years. The majority substitutes its own factual determinations for the trial court’s findings, which correctly ruled that the State’s actions were reasonable given the Petitioner’s evasive conduct and other relevant determinations. This Court should deny the writ. The State presented evidence that Petitioner was contacted and made aware of the bench warrants issued for his arrest before the capiases were issued. In 2013 after the capiases issued, Alachua County investigators attempted to contact Petitioner at his girlfriend’s address. Investigators checked further on a residential utility account to try to obtain another address. They passed around Petitioner’s photograph. The sheriff’s office placed advertisements in the local newspaper and on television. In 2014, 2015, and 2016, the sheriff’s office placed more advertisements in the local newspaper. Other possible addresses were uncovered in 2019 and 2020, and ultimately, Petitioner was served with the capiases in 2020 after a foot chase. Section 775.15(4)(b), Florida Statutes (2012), provides: A prosecution on a charge on which the defendant has not previously been arrested or served with a summons 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 6 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. The failure to execute process on or extradite a defendant in another state who has been charged by information or indictment with a crime in this state shall not constitute an unreasonable delay. (emphasis added). Thus, the State is only required to show it did not engage in unreasonable delay in attempting to serve Petitioner with a “capias, summons, or other process.” The State did that here. The trial court conducted an evidentiary hearing where it found that the State had engaged in a reasonable search for the elusive Petitioner. The State had the burden to show only that its efforts to serve Petitioner did not result in “unreasonable delay”; certainly, Petitioner never presented evidence that he was in fact readily available for the service of the capias, which could have defeated the State’s arguments. Cf. Fields v. State, 505 So. 2d 1336, 1337 (Fla. 1987) (affirming a finding of unreasonable delay and noting that the State knew the defendant’s address and made no attempt to execute the capias for five years) (emphasis added). It is equally relevant that Petitioner attempted to elude service, as recognized in McNeil v. State: Thus, the reasonableness of the delay in serving a capias may be determined in light of a defendant’s efforts to elude prosecution. However, when, as here, the state offers no evidence that it made any effort to locate defendant-such as checking obvious sources like telephone directories-the search has not been diligent and the delay cannot be held sufficiently reasonable. 673 So. 2d 125, 126 (3d DCA 1996) (emphasis added). And unlike in McNeil, here the State did attempt to locate Petitioner, repeatedly. But as the court in McNeil properly recognized, a suspect’s attempt to “elude prosecution” must be considered in the State’s favor. It is not unreasonable to fail to serve a capias on a person who is determined to avoid service, which Petitioner 7 obviously was, up and until he was apprehended following a foot chase. Additionally, the trial court correctly took judicial notice of a child-support hearing case, for which Petitioner failed to appear. The trial court stated for the record that a motion for contempt for nonpayment of child support was filed in 2013 with a hearing scheduled in 2014. As the State argues here, “Petitioner failed to appear at the hearing and a writ of bodily attachment was issued on February 4, 2014.” The trial court properly considered this as evidence that Petitioner was avoiding service of process in Florida. The trial court correctly ruled that: [T]he Court is convinced the State has met its burden in this case, that they did a diligent search. I’m frankly not sure what more they could have done. There was no reasonable ascertainable place of abode or work for Mr. Mackey. They searched the obvious sources of information, as I’ve already explained. They then received information which appears to be corroborated by other evidence presented at the hearing, that Mr. Mackey had left the State of Florida and was outside of the jurisdiction during the pertinent time periods. It’s for all of these reasons that the motion to dismiss, at this time, is denied. (emphasis added). I agree with the trial court. This Petitioner had no utility account, no residential address, and no indication whatsoever that he was living an open and law-abiding life in Alachua County, during which the sheriff’s office could have served him. The facts here are thus easily distinguishable from our decision in Coleman v. State, where we noted that “the extent of the state’s efforts to serve the appellant consisted of an unsuccessful mailing. . . .” 655 So. 2d 1239, 1239 (Fla. 1st DCA 1995). Here, the State repeatedly attempted to locate Petitioner and, in fact, informed him of the bench warrants. The State also 8 repeatedly advertised and searched for Petitioner, who was aware of his pending charges. Furthermore, if the evidence in this case is “stale,” it will only inure to the Petitioner’s benefit, as the State always carries the burden of persuasion to prove charges beyond and to the exclusion of a reasonable doubt. Delay always prejudices the State, as it is the party carrying the burden of persuasion. Juries are required to hear testimony from witnesses whose memories are hampered by the lapse of time, and other State witnesses may not be available. Delay also hurts criminal victims and their families. Thus, the State has no logical or strategic interest in purposely or negligently delaying arrest, and no such improper tactics or negligence occurred here—quite the opposite in fact. The purpose of criminal statutes of limitations is not to help potential arrestees successfully elude authorities and then obtain a dismissal of charges. Here, the evidence shows quite clearly that Petitioner had no intention of submitting to any service of a capias and was determined to avoid arrest by every possible means. We should deny the writ. _____________________________ Stacy A. Scott, Public Defender, and Rachael O’Brien, Assistant Public Defender, Gainesville, for Petitioner. Ashley Moody, Attorney General, and David Welch, Assistant Attorney General, Tallahassee, for Respondent. 9