Defendant cannot waive statute of limitations in Florida as to lesser offenses

Cartegena v. State, 38 Fla. L. Weekly D1017D (Fla. 4th DCA May 8, 2013):  HELD:  Where a defendant has asserted the statute of  limitations to prevent prosecution of some old (and time-barred) charged crimes arising out of the same criminal episode as another old charge (that is not time-barred) in order to avoid prosecution for those old crimes, he cannot then assert the statute of limitations to secure the possibility of reducing his punishment as to crimes for which he still is being prosecuted.

Cartegena was charged in 2008 with a 1996 armed sexual battery and armed burglary.  Prior to trial, he moved to dismiss the armed burglary based on a violation of the statute of limitations (Fla. Stat. 775.15).  He prevailed, and went to trial only on the armed sexual battery charge.  At his subsequent trial on the armed sexual battery charge, the defendant sought to waive his statute of limitations defenses as to the lesser-included offenses for the armed sexual battery so as to be entitled to have the jury instructed on these lesser offenses. The trial court refused to accept the waiver, reasoning that, having successfully asserted a statute of limitations defense to obtain the dismissal of the one charge, the defendant could not now waive his statute of limitations defense as to the lesser-included offenses of the other charge. The jury found the defendant guilty of the only offense put before it — armed sexual battery.

First, the Florida appeals court held that Cartegena did not properly waive any statute of limitations defense to the lesser-included charge (that it was done knowingly and voluntarily, with consultation of counsel, and did not contravene public policy).  The Florida criminal appeal court found that a “maneuver” of “on again, off again” pleading and waiver of the statute of limitations would contravene public policy reasons motivating the statute.  Those public policy reasons are that “the purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past” (citing Toussie v. United States, 397 U.S. 112, 114-15, 90 S.Ct. 860, 25 L.Ed.2d 156 (1970)).

Secondly, the district court of appeal held that “[w]here the defendant may still be prosecuted for acts arising out of the same episode which are not barred by a statute of limitations, the statute does not provide protection to the defendant in his defense. Instead, it operates simply to reduce his exposure to punishment for all relevant crimes. Because it is not a constitutional violation, we conclude that the trial court did not err in refusing the appellant’s waiver.”

In short, what the court is saying is that where certain crimes are too old to be prosecuted any more, the defendant may avail him- or herself of  the statute of limitations and avoid prosecution for those old charges.  However, where there is a remaining charge that is not time-barred, the defendant cannot then waive the protection of statute of limitations to try to get the jury to convict of lesser offenses that, ordinarily, would be too old to be prosecuted.

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