Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT JOSEPH GENNARO MARCARIO, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D19-4743 August 13, 2021 Appeal from the Circuit Court for Manatee County; Frederick P. Mercurio, Judge. Andrea Flynn Mogensen, Sarasota, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Michael S. Roscoe, Assistant Attorney General, Tampa, for Appellee. NORTHCUTT, Judge. Joseph Marcario was convicted of attempted robbery with a firearm. But it is apparent from the face of the record that Marcario had a meritorious statute of limitations defense and that his trial counsel rendered ineffective assistance by failing to assert it. We reverse the conviction. In 2003, the State charged Marcario with one count of attempted robbery with a weapon, a second-degree felony, see §§ 812.13(2)(b), 777.04(4)(c), Fla. Stat. (2003), after which he apparently left the country. He was located years later in Honduras. When Marcario returned to Florida in 2019, the State filed first and second amended informations, changing the charge to attempted robbery with a firearm, which is also a second-degree felony.1 See §§ 812.13(2)(a), 777.04(4)(c). The amended informations also added a citation to section 775.087, Florida Statutes (2003), commonly referred to Florida's 10-20-Life statute. See §§ 775.087(1), (2)(a). Marcario was tried and convicted as charged. The trial court sentenced him to ten years' imprisonment, 1 Although the completed offense of robbery with a firearm would be a first-degree felony punishable by life, the attempt variant of the offense is reduced beyond a simple first-degree felony to a second-degree felony. Cf. Chambers v. State, 975 So. 2d 444, 448 (Fla. 2d DCA 2007) (stating that an attempt to commit second- degree murder, the completion of which is a first-degree felony punishable by life, is reduced to a second-degree felony under section 777.04(4)(c)). 2 with a ten-year mandatory minimum under the 10-20-Life statute based on his possession of a firearm. While this appeal was pending, Marcario filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). He asserted that the State's amended charge was barred by the statute of limitations and that, because the 10- 20-Life statute was cited only in the amended informations, he should not have been sentenced to a ten-year mandatory minimum term. The trial court agreed, granted the motion, and struck the mandatory-minimum component of the sentence. In this appeal, Marcario now challenges the conviction itself on the statute-of- limitations ground. He argues that his trial counsel's failure to move to dismiss the amended informations as time barred was ineffective assistance that is apparent on the face of the record. Because the amended charge was a second-degree felony, it was subject to a three-year statute of limitations. See § 775.15(2)(b); see also § 775.15(5) (stating that the limitations period may be tolled when the defendant is absent from the state, but only for a maximum of three years). We conclude that the 3 amendment to the substantive charge against Marcario outside of the limitations period was untimely. The supreme court has explained the guiding principles on untimely amendments as follows: This Court has carved out an exception to the [timely] filing requirement where the state, because of a clerical-type error made in good faith, improperly alleges the elements of an offense in a timely-filed charging document. In such instances, we have held that the state may amend the charging document to correct the error after the applicable statutory period has elapsed, provided that the amendment was not intended to actually change the substantive charge and did not prejudice the rights of the accused to present a defense and get a fair trial. M.F. v. State, 583 So. 2d 1383, 1386 (Fla. 1991). Thus, the State may only amend a charging document outside of the limitations period when necessary to correct a clerical error. The amendment may not change the substantive charge or prejudice the rights of the accused. The court in M.F. went on to review a selection of relevant district court opinions on the subject. Although all of the cases that it reviewed involved juvenile delinquency proceedings, which impose a stricter forty-five-day limitations period, the court applied the same principles quoted above, with the exception of the 4 requirement that the defendant's rights not be prejudiced by the amendment. See id. at 1388–89 (stating that "juveniles necessarily are prejudiced when they are denied their substantive right[]" "to be properly charged within the applicable limitations"). Given the issues in this case, the court's discussion of the first two aspects of the analysis is sufficient to guide our inquiry. Most instructive for this case was M.F.'s discussion of three cases in which the State, as in this case, amended the charged offenses without materially altering the factual allegations in the charging documents: In the second group of cases, those which dealt with amendments that altered the type of violation alleged, we begin with State v. M.M., 557 So. 2d 217 (Fla. 2d DCA 1990). There, a timely petition alleged principal to sexual battery, but after being twice amended after the forty- five-day period elapsed, the petition alleged three different violations: principal to lewd, lascivious, or indecent assault or act upon a child; kidnapping; and aggravated assault. The district court permitted the amendments, reasoning that the alleged victim and the date of the alleged delinquent acts remained the same from the outset, with all allegations arising from the same factual incident. Since the amendments were filed early in the case and before an adjudicatory hearing was held, the district court said M.M. suffered no surprise or prejudice. In In re B.T., 573 So. 2d 101 (Fla. 1st DCA 1991), the state timely filed a petition alleging that B.T. committed sexual battery without the victim's consent 5 with the use of physical force and violence not likely to cause serious injury. After the forty-five-day filing period elapsed, the state amended the petition to allege that B.T. committed sexual battery upon a physically helpless victim, thereby increasing the allegation to what in adult criminal proceedings would be an offense of a higher degree. The court adjudicated B.T. delinquent at a hearing six months later, and the district court affirmed, finding that B.T. could not have been surprised or prejudiced under the facts of that case. Likewise, in In re E.M., 362 So. 2d 427 (Fla. 4th DCA 1978), the court approved an amendment that changed the allegation of trespass to an allegation of burglary. Each of these decisions are fatally flawed because they failed to recognize that since the design of the state was to change the allegations to different substantive violations, rather than merely correct clerical errors, the state circumvented the juveniles' substantive rights to be properly charged within the applicable limitations imposed by section 39.05(6). 583 So. 2d at 1388 (footnote omitted) (emphasis added). Thus, even though the State in those three cases based the amended charges on the same facts alleged in the original charges, the amendments of the substantive offenses outside the limitations periods were impermissible. That is precisely the situation before us today. Although, as the State points out, it did not alter any of the factual allegations in the amended informations and Marcario was therefore always on notice of the specific allegations against him, the amendments did not merely correct a clerical-type error. 6 Rather, they alleged a substantive offense other than the one charged in 2003. As in the examples just described, these types of amendments were impermissible, notwithstanding that they were founded on the same allegations of fact. The State further argues that we should focus our analysis on "whether the amended information should be deemed to have been merely a continuation of the original information." Bongiorno v. State, 523 So. 2d 644, 645 (Fla. 2d DCA 1988). But the two cases that the State cites for that proposition do not assist its cause, and the analysis in those cases appears no different than the analysis conducted in M.F. In Bongiorno, we held that an amended information was barred by the statute of limitations when it changed the charged offense from attempted sexual battery to completed sexual battery and altered the time span in which the offense was alleged to have occurred. Id. In the second case, Rubin v. State, 390 So. 2d 322, 324 (Fla. 1980), the supreme court held that the State's amended charging document changing only the name of the corporate victim did not run afoul of the statute of limitations because the State was merely correcting a "slight 7 inaccuracy" in the name of the victim, the amended information itself noted that it was a "refile" of the same case, and the charges in the original and amended informations were identical. Id. These outcomes are entirely consistent with the rule applied in M.F., i.e., that outside the statute of limitations period the State may correct clerical-type errors in an information, but it cannot alter the substantive charge or the allegations supporting it. Thus, we agree with Marcario's assertion that the State's amended informations were barred by the statute of limitations. However, because Marcario's counsel failed to make this argument to the trial court, on direct appeal he may obtain relief on this basis only if counsel's omission amounted to ineffective assistance that is apparent on the face of the record. See State v. Smith, 241 So. 3d 53, 56 (Fla. 2018) (holding that, while a defendant must object in the trial court to preserve an argument that a conviction is barred by the statute of limitations, a lack of preservation does not foreclose a claim of ineffective assistance of counsel); id. at 58 (Pariente, J., concurring) ("If ineffective assistance of counsel appears on the face of the record, then an appellate court can 8 consider and remedy the error. Having this alternative is critical, especially in cases where all crimes for which the defendant could be convicted are barred by the statute of limitations." (citations omitted)); see also Sims v. State, 998 So. 2d 494, 502 (Fla. 2008) ("A claim of ineffective assistance may be considered during the direct appellate proceedings if the 'ineffectiveness is apparent on the face of the record and it would be a waste of judicial resources to require the trial court to address the issue.' " (quoting Blanco v. Wainwright, 507 So. 2d 1377, 1384 (Fla. 1987))). Our analysis of the ineffective-assistance issue requires us to determine whether there could have been any reasonable tactical explanation for counsel's failure to seek a dismissal on statute of limitations grounds. See Mathis v. State, 204 So. 3d 104, 105 (Fla. 1st DCA 2016) (noting that a direct-appeal claim of ineffective assistance requires a showing that there was no conceivable tactical explanation for counsel's conduct). Certainly, there was none. The statute of limitations had run on the charged offense as well as on any other charge that the facts of the case could have supported. If Marcario's counsel had raised the statute of limitations issue, the 9 State could not have filed any new charges against Marcario arising from the criminal episode at hand. The State further argues, however, that it does not necessarily follow that Marcario was prejudiced by counsel's failure to file a motion to dismiss. It contends that such a motion would not have led to a dismissal of the charges, but rather would have resulted only in the striking of the 10-20-Life sentencing enhancement, thus placing Marcario in the same position he is in now. In this regard, the State points to the fact that, when granting Marcario's rule 3.800(b)(2) motion, the trial court struck only the 10-20-Life enhancement and did not vacate the conviction. But, of course, rule 3.800(b)(2) is concerned only with sentencing errors, not convictions. Farrar v. State, 42 So. 3d 265, 266 (Fla. 5th DCA 2010). Accordingly, under the rule, the trial court was empowered only to address sentencing issues, such as the 10-20-Life enhancement that the State added in the amended informations. It could not set aside Marcario's conviction. The State also maintains that if Marcario's counsel had moved to dismiss the amended informations on statute-of-limitations 10 grounds, the trial court would have simply disallowed the amendments and proceeded to trial on the charge under original information. Again, we disagree. "It is well settled that the filing of an amended information purporting to be a complete restatement of the charges supersedes and vitiates an earlier information." State v. Anderson, 537 So. 2d 1373, 1374 (Fla. 1989); see State v. Belton, 468 So. 2d 495, 497 (Fla. 5th DCA 1985) ("[T]he filing of a signed and sworn amended information has the legal effect on the original information of a nolle prosequi."); see also Sadler v. State, 949 So. 2d 303, 305 (Fla. 5th DCA 2007) ("A nolle prosequi effectively ends the proceeding, and, any action taken subsequent to the filing of the nolle prosequi is a nullity." (first citing State v. Braden, 375 So. 2d 49, 50 (Fla. 2d DCA 1979), and then citing Childers v. State, 277 So. 2d 594, 596 (Fla. 4th DCA 1973) (Cross, J., concurring))). Thus, in this case, the first amended information operated as a nolle prosequi of the original information, which could not be resurrected outside of the limitations period if the first or second amended information had been dismissed. 11 Clearly, then, Marcario was prejudiced by his counsel's failure to seek dismissal of the amended informations: The amended charge was barred by the statute of limitations, there was no conceivable reason for waiving the statute of limitations defense, and the prosecution would have been dismissed had counsel filed the appropriate motion. Thus, we can resolve this matter from the face of the record, and there is no reason why Marcario must resort to a rule 3.850 postconviction relief proceeding, with its attendant consumption of judicial resources, to obtain relief. We reverse Marcario's conviction and remand for him to be discharged. Reversed and remanded. VILLANTI and LABRIT, JJ., Concur. Opinion subject to revision prior to official publication. 12