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  • Florida Appellate Court Dismisses Criminal Charge Based on Failure to Prosecute

Florida Appellate Court Dismisses Criminal Charge Based on Failure to Prosecute

Both Florida and U.S. laws provide protections for people who are either accused or suspected of committing a crime from any improper or illegal activities on the part of government officials like police officers. Some of these rights are well known, like the right to not incriminate yourself and the right to have an attorney present during questioning. One of the lesser known rights afforded to criminal suspects and defendants is the right to have the matter brought to trial within a certain period of time.

Recently, the Florida Second Circuit Court of Appeals dismissed a case based on the prosecution’s failure to bring the case to trial within a reasonable timeframe. In Norton v. State, the defendant was suspected of violating Florida’s laws against so-called doctor shopping. More specifically, the law prohibits an individual who has been prescribed a controlled substance during the last 30 days from providing information about or withholding information about that prescription from another health care provider when that person is attempting to obtain a second similar or identical prescription from the other health care provider. Violations of this statute constitute third-degree felonies. 

According to the information filed by the prosecution, the defendant allegedly committed a doctor shopping offense sometime between June 2009 and March 2010. The prosecution issued a capias, which is a document ordering the arrest of a specific person, on the same day that it filed the information, during late July 2010. The defendant was eventually arrested on July 30, 2014–four years later.

In response to the arrest, the defendant moved to dismiss the information on the grounds that the prosecution had failed to commence the prosecution within the statutorily prescribed period of limitations, which is three years for a third-degree felony in Florida.

The records custodian for the Sheriff’s Office testified on behalf of the prosecution, claiming that the defendant’s arrest warrant was issued on August 9, 2010 and that it entered the state and national databases on August 16, 2010. A deputy attempted to make service of the warrant on the defendant the next day at the defendant’s mother’s residence, but the deputy learned that the defendant had not lived at the address for several years.

Another service attempt was made on October 11, 2011 at the mother’s home, but the defendant was not present. Multiple additional attempts were made at various addresses around that same time period. Between then and the arrest in 2014, no additional attempts were made. Nothing in the case file indicated that the police had looked at property tax records, online phone directories, social media accounts, or other outlets for locating individuals.

Despite this, the trial court denied the defendant’s motion to dismiss, concluding that the police had used “diligent efforts” and conducted a “diligent search” when looking for the defendant, and it further concluded that the arrest occurred within the statute of limitations.

On appeal, the district court reversed the lower court’s determination that the prosecution’s search for the defendant was diligent. Instead, after being unable to locate the defendant, the police simply posted the warrant online and took no additional action for the next 1.5 years. It was only after the state looked through vehicle registration and driver’s license records that they were able to locate the defendant, but by then the statute of limitations had expired. Since the state had failed to fulfill its duty to utilize readily available sources of information, the state failed to meet its obligation to locate the defendant and prosecute the case in a timely fashion.

If you are facing criminal liability, the skilled drug crimes attorneys at The Hoffman Firm can help. We understand just how difficult this time is for you and your family, so we make sure you receive the compassionate and aggressive representation that you deserve. Call us now at (305) 249-0090 or contact us online to set up your free, confidential, no-obligation consultation today.

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Evan A. Hoffman

Evan A. Hoffman

Mr. Hoffman’s philosophy is "our knowledge and experience is your best defense." He has been a featured author on criminal law issues such as driving under the influence, domestic violence and illegal searches.

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