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Sample Motion to Dismiss – Lack of Prosecution

Phil Photo New By Philip M. Snyder

The criminal defense attorneys at Lyons, Snyder & Collin were recently retained by a individual with an outstanding capias stemming from a 1997 burglary charge in Fort Lauderdale.    Criminal defense attorney Philip Snyder filed the following Motion to Dismiss citing “Lack of Prosecution” and the “Expiration of the Statute of Limitations”.   The Motion to Dismiss is currently pending in the Circuit Court of Broward County.   The defendant’s name and case number has been deleted for privacy purposes.  Any formatting errors were not present in the Motion filed with the Court.

IN THE CIRCUIT COURT OF
THE 17th JUDICIAL CIRCUIT

IN AND FOR BROWARD
COUNTY, FLORIDA

 

STATE OF FLORIDA,

Plaintiff,

vs.

xxxx, xxxxxxx,                                                                      

Defendant.

_____________________________/

 

MOTION TO DISMISS – EXPIRATION OF STATUTE OF LIMITATIONS

COMES NOW, the defendant, xxxx, xxxxxxx, pursuant to Rule 3.190, Fla. R. Crim. P. and Fla. Stat. 775.15 moves this Court for an order granting the defendant’s Motion to Dismiss one count of Burglary (Conveyance), Fla. Stat. §810.02(1), and as grounds therefore states:

GENERAL
FACTUAL ALLEGATIONS IN SUPPORT OF DEFENDANT’S MOTION

  1. On or about March 3, 1997, the State filed one count of Burglary (Conveyance), Fla. Stat. §810.02(1) against the defendant, xxxx xxxxxxx (hereinafter “XXXXXX”).  A true and correct copy of the Information is attached hereto and incorporated by reference as Exhibit “A”.
  2. XXXXXX allegedly burglarized an automobile on or about September 5, 1995.   A true and correct copy of the Probable Cause Affidavit attached hereto and incorporated by reference as Exhibit “B”.
  3. Such Probable Cause Affidavit specifically mentioned that XXXXX was detained in
    Florida State Prison.   XXXXXX address is listed as “Martin Unit Treatment Facility, 1175 SW Allapattah St., Indian Town, FL.”  [1]
  4. Although the State was clearly privy to XXXXXX’X location, the State failed to serve XXXXXX with the capias from this charge.
  5. Instead, XXXXX was first apprised of this charge upon being stopped for a routine traffic violation in Largo, FL in 2011.
  6. The State’s failure to serve XXXXXX with a capias in excess of fourteen years after the filing of an information constituted an unreasonable delay and thus prosecution is barred by the statute of limitations.

DISCUSSION

XXXXXX challenges his prosecution as untimely under the statute of limitations.   The State has the burden to prove that the prosecution is not barred by the statute.  Soto v. State, 982 So.2d 1290 (Fla. 4th DCA, 2008).

A prosecution is commenced when either an indictment or information is filed, provided the capias, summons, or other process issued on such indictment is executed without unreasonable delay.   Soto at 1290.  The prosecution of a third degree felony must be commenced “within 3 years after is is committed.” Ehrlick v. State 898 So.2d 237 (Fla. 4th DCA, 2005) citing §775.15(2)(B), Fla. Stat. (1998).    In determining what is reasonable, the inability to locate the defendant after diligent search or the defendant’s absence from the State shall be considered.  Id.

Relying on Fla. Stat. 775.15, XXXXXX’X prosecution for this charge had not commenced until the
State executed the capias in 2011 – fourteen years after the State filed one count of Burglary (Conveyance), Fla. Stat. §810.02(1) – even though the State was aware of the defendant’s location in Florida State Prison.   Clearly, the State’s failure to serve XXXXXX with the capias in excess of fourteen years after filing an information constituted unreasonable delay.    See Ehrlick v. State 898 So.2d 237 (Fla. 4th DCA, 2005); Mack v. State, 637 So.2d 18 (Fla. 4th DCA, 1994).

WHEREFORE, the defendant respectfully prays this Honorable Court to dismiss the count of Burglary (Conveyance), Fla. Stat. §810.02(1), in the above styled cause.

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by HAND DELIVERY to: State Attorney’s Office of the Seventieth Judicial Circuit, c/o Judge XXXXX division on this 28 day of December 2011.

 

Respectfully submitted,

Philip Snyder, Esq.

Lyons,Snyder & Collin, P.A.

312 S.E. 17th Street, 3rd Floor

Fort Lauderdale, Fl 33316

Tel: 954.462.8035

Fax: 954.462.8036

philip@lyonssnyder.com

FBN: 815101


[1]
XXXXXX was incarcerated in Florida State Prison as a result of Broward County
Case Number: xx-xxxxxCF10A.