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Statute of limitations for grand theft controlled over general statute of limitations resulting in dismissal of a grand theft charge even though the defendant was continuously out of the state.

The case of State v. Perez, 36 Fla. L. Weekly D2288a (Fla. 2d DCA October 19, 2011) involved an appeal by the State from the circuit court's order dismissing a grand theft charge.

Ms. Perez was charged by information with committing grand theft between May 1, 2000 and August 31, 2000. The information was filed on November 27, 2002. The issue in the case was whether this specific statute of limitations found in Florida Statute § 812.035(10) applies or whether the general statute of limitations contained in Florida Statute § 775.15 controls so as to allow the prosecution.

The general statute of limitations contained in Florida Statute § 775.15(5)(b) provides that process must be executed without unreasonable delay. It further sets forth:

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.

The above statute was in effect on July 1, 1997.

Florida Statute § 775.15(6) further provides:

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. This provision shall not extend the period of limitation otherwise applicable by more than 3 years, but shall not be construed to limit the prosecution of a defendant who has been timely charged by indictment or information or other charging document and who has not been arrested due to his or her absence from the state or has not been extradited for prosecution from another state.

Florida Statute § 812.035(10) which specifically applies to the grand theft statute sets forth a five-year limitation period. That period can be extended for no more than 1 year should the defendant be continuously absent from the state.

The court noted that in the Perez case, the statute of limitations began to run on September 1, 2000. In support of this the court cited to Brown v. State, 674 So. 2d 738 at 741 (Fla. 2d DCA 1995). The court went onto note that the information was filed within the limitations period and that the capias was issued within the limitations period but was not executed until September 9, 2010, almost eight years after the state filed the information.

The state argued that it was entitled to rely upon § 775.15 and therefore, prosecution was permissible due to the defendant's continuous absence from the state.

The appellate court was then called upon to decide whether § 775.15 supersedes or adds to the specific limitation provisions for grand theft provided in § 812.035(10).

In deciding the statutory construction issue, the court recognized that a more specific statute controls over the more general statute. In particular it noted that the wording of § 812.035(10) includes "notwithstanding any other provision of law." Therefore, it held that § 775.15(5) and (6) had to yield to the specific statute of limitations contained in the theft statute, § 812.035(10). It also noted that the trial court considered the state's delay in executing the capias.

The ruling is therefore clear that in a prosecution for theft, the state is limited to a maximum limitation period of six years as provided in § 812.035(10).