Florida’s Statute of Limitations

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Florida’s Statute of Limitations in Criminal Cases

Throughout its history, Florida’s Statute Section 775.15 has provided the general rule for when the statute of limitations acts as a bar to prosecution. If your case involves a statute of limitations issue, your attorney must raise it at the trial court level, or you might waive it on appeal.

In Smith v. State, 241 So. 3d 53, 56 (Fla. 2018), the Florida Supreme Court held that a claim that the statute of limitations bars a conviction for a charged offense must be raised in the trial court to preserve the issue for direct appeal.

The Smith holding does not necessarily preclude a defendant prejudiced by trial counsel’s nonstrategic failure to raise a statute-of-limitations defense from asserting a claim of ineffective assistance of counsel in a post-conviction Rule 3.850 motion.

For prosecutions in state court, after the defendant raises the issue of the statute of limitations in a “motion to dismiss” as a bar to prosecution, then the State has the burden of showing that:

• the prosecution was commenced in a timely manner; and
• the state conducted a diligent search for and service of process upon the defendant.

If the trial court improperly denies the motion, the criminal defense attorney can file a “petition for a writ of prohibition” to a higher court.

If granted, the writ of prohibition prevents the prosecutor from the State Attorney’s Office from proceeding with the prosecution when the applicable statute of limitations has expired.

What is the Statute of Limitations Period that Applies?

You must carefully determine which statute of limitations period is applicable for each charge. For example, some types of felony offenses can be charged as a life felony (which has no statute of limitations) or a first-degree felony punishable by life (which is subject to a four-year statute of limitations).

Keep in mind that Florida law provides for many exceptions for these general rules, and specific offenses sometimes have longer time periods that apply.

Florida’s Statute of Limitations in Most Misdemeanor Cases

• Second (2nd) Degree Misdemeanor – 1 year
• First (1st) Degree Misdemeanor – 2 years

Florida’s Statute of Limitations in Most Felony Cases

• Third (3rd) Degree Felony – 3 years
• Second (2nd) Degree Felony – 3 years
• First (1st) Degree Felony – 4 years
• Life Felony – No Statute of Limitations is Applicable
• Felony that Results in Death – No Statute of Limitations is Applicable
• Capital Felony – No Statute of Limitations is Applicable

The statute of limitations in civil asset forfeiture cases in federal court is five years.

Frequently Asked Questions Concerning the Statute of Limitations

When does Florida law consider the crime to be “committed” under Florida law?

Florida law provides that a criminal offense is committed either “when every element has occurred or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the defendant’s complicity therein is terminated.”

The statute also provides that the time starts to run on the day AFTER the offense is committed.

When is the prosecution “commenced” under Florida law after an arrest?

Florida law provides that the prosecution on a criminal charge on which the defendant has previously been arrested or served with a summons is “commenced” by filing an indictment, information, or other charging documents.

A prosecution on a charge for which the defendant has not previously been arrested or served with a summons is commenced when either an indictment or information is filed, provided the capias, summons, or other process issued on such indictment or information is executed without unreasonable delay.

In determining what is reasonable, the inability to locate the defendant after a diligent search or the defendant’s absence from the state shall be considered.

But 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 does not necessarily constitute an unreasonable delay.

Therefore, even if the Information is filed and the warrant is issued within the statute of limitations period, if the Defendant is not arrested until outside the applicable time period after the offense allegedly occurs, then the prosecutor with the State Attorney’s Office carries the burden of demonstrating that either:

• the delay was reasonable because the State was diligent in its search for the defendant; or
• the statute of limitations was tolled because the defendant was continuously absent from the State of Florida.

• 775.15(5), Fla. Stat.

At a hearing on the motion to dismiss because of the statute of limitations, the trial court must decide if the evidence presented to the trial court supports the finding that:

• the State conducted a diligent search for the Defendant; and
• the State has failed to demonstrate that the delay in executing Defendant’s arrest warrant was reasonable.

The prosecutor with the State Attorney’s Office must also meet the burden of demonstrating that the defendant was continuously absent from the state to toll the statute of limitations.

When does the Statute of Limitation not run in a criminal case?

Florida law provides that the limitation period does not run when the defendant is continuously absent from the state or has no reasonably ascertainable place of abode or work within the state.

This provision extends the limitation period otherwise applicable. Still, it is not 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 this state or has not been extradited for prosecution from another state.

Can the Defendant Waive the Statute of Limitations Issue?

Yes, the issue is waived if the criminal defense attorney doesn’t raise the issue in front of the trial court. In deciding the extent to which the statute of limitations can be waived, the courts in Florida have generally taken one of four approaches:

1. The statute of limitations is a jurisdictional fact or jurisdictional bar that cannot be waived and can be raised for the first time on appeal;
2. The statute of limitations is a non-jurisdictional affirmative defense that can be waived if the defendant makes a knowing, intelligent, and voluntary waiver of the defense;
3. The statute of limitations is a non-jurisdictional affirmative defense that the action of the defendant can waive (e.g., a negotiated plea to a reduced charge or lesser sentence); and
4. The statute of limitations is a non-jurisdictional affirmative defense waived on direct appeal if not affirmatively raised in the trial court.

In Smith v. State, 241 So.3d 53, 56 (Fla. 2018), the Florida Supreme Court held for the first time that a claim that the statute of limitations bars a conviction for a charged offense must be raised in the trial court to preserve the issue for direct appeal.

This ruling does not preclude a defendant prejudiced by trial counsel’s nonstrategic failure to raise a statute-of-limitations defense from asserting a claim of ineffective assistance of counsel in a Rule 3.850 motion.

As a practical matter, if the issue wasn’t raised, it was probably because the attorney didn’t realize there was a speedy trial issue. After all, there are very few strategic reasons not to raise the defense.

In other words, if your attorney forgot to raise the statute of limitations issue as a defense, you might find relief by filing a direct appeal immediately after sentencing or a Rule 3.850 within two (2) years after the conviction becomes final.

Other Types of Criminal Offenses and Rules on Florida’s Statute of Limitations

Other types of criminal offenses with special rules for the statute of limitations include:

• Any Violation of Probation – No Statute of Limitations is Applicable
• Abuse, Neglect, Exploitation of Disabled Adults or the Elderly – Five Years
• Any Theft Offense – Five Years

Under 812.035(10), for theft, robbery, and related crimes, a criminal or civil action or proceeding under ss. 812.012-812.037 or s. 812.081 may be commenced within five (5) years after the cause of action accrues.

In a criminal proceeding under ss. 812.012-812.037 or s. 812.081, however, the period of limitation does not run during any time when the defendant is continuously absent from the state or is without a reasonably ascertainable place of abode or work within the state, but in no case shall this extend the period of limitation otherwise applicable by more than one (1) year.

If a criminal prosecution, civil action, or other proceeding is brought or intervened in to punish, prevent, or restrain any violation of the provisions of ss. 812.012-812.037 or s. 812.081, the running of the period of limitations prescribed by this section concerning any cause of action arising under subsection (6) or subsection (7) which is based in whole or in part upon any matter complained of in any such prosecution, action, or proceeding shall be suspended during the pendency of such prosecution, action, or proceeding and for two (2) years following its termination.

This five-year statute of limitations applies to the criminal offenses in Florida that are now included within the theft statute but were previously classified as:

• deception;
• fraud;
• obtaining money or property by false pretenses;
• conversion;
• misappropriation;
• misapplication;
• embezzlement;
• abstracting;
• purloining;
• larceny; or
• stealing.

Even though a second degree misdemeanor typically has a one-year statute of limitations, for a petit theft charged as a second degree misdemeanor, the applicable statute of limitations is not section 775.15(2)(d). See § 812.035(10), Fla. Stat. (2017).

Florida’s Statute of Limitations Exploitation of the Elderly

For violations of Section 825.103, F.S., regarding the exploitation of the elderly, prosecutors generally have five years to prosecute the crime.

A prosecution may be commenced for any offense within one year after the discovery of the offense by an aggrieved party (or a person with a legal duty to represent an aggrieved party) if a material element of the crime is fraud or a breach of a fiduciary obligation.

The statute of limitations period may not be extended by more than three years as explained in Section 775.15(12(a), F.S.

Florida’s Statute of Limitations for Sexual Battery

As a general rule, the prosecution for a capital felony, a life felony, or a felony that resulted in death does not have a statute of limitations. Additionally, several sexual battery crimes fall into this category of offenses that have no statute of limitations, including:

• Sexual battery of a child under 12 years of age by a person in familial or custodial authority under § 794.011(8)(c).
• Sexual battery with the use of force or the use or threat to use a deadly weapon under § 794.011(3);
• Sexual battery of a child less than 12 years of age under § 794.011(2)(a) and (b);
• A violation of § 794.011(sexual battery) when the victim was under 16 years of age at the time the offense was committed. § 775.15(13)(c); and
• A first degree felony sexual battery committed on a victim under 18 years of age as provided in § 775.15(13)(b).

Some versions of sexual battery have no statute of limitations if certain reporting conditions are met, including:

• A first or second-degree felony sexual battery under § 794.011 committed upon a victim under the age of 18 which is reported to a law enforcement or other governmental agency within 72 hours after its commission as provided in § 775.15(13)(a).
• A first or second-degree felony sexual battery under § 794.011 reported to a law enforcement agency within 72 hours after its commission as provided in §775.15(14).

History of Florida’s Statute of Limitations for Crimes

At common law, there was no set time limit restriction under which a criminal charge was barred from prosecution. Time limitations, or statutes of limitation, for criminal prosecutions exist as a creation of statute.

In State v. Hickman, 189 So. 2d 254, 261 (Fla. 2d DCA 1966), the court explained:

The only purpose of a Statute limiting the time within which a criminal charge may be prosecuted is to protect every person from being interminably under the threat or cloud of possible criminal prosecution, which otherwise might be indefinitely delayed until the time when defense witnesses might die, disappear or otherwise become unavailable, judges would change office, or innumerable other time hazards might develop, which could conceivably defeat, or at least hamper, an otherwise good defense.

Since the creation of statutes of limitation, courts have held that the statute of limitation that was in effect when a crime was committed generally controls. See Beyer v. State, 76 So. 3d 1132, 1135 (Fla. 4th DCA 2012).

Furthermore, the statutes of limitation in criminal cases should be construed liberally in favor of the defendant. Id.

The Florida Legislature may extend the limitations period without violating the ex post facto clause of the Florida Constitution, FLA. CONST. art. I, s.10., if the Florida Legislature makes the change before the prosecution is barred under the old statute and clearly demonstrates that the new statute applies to cases pending when the extension takes effect. See Section 775.15(3) F.S.; Andrews v. State, 392 So. 2d 270, 271 (Fla. 2d DCA 1980).

Time Limitations in Florida’s Statute of Limitations for Criminal Charges

Section 775.15, F.S., sets forth time limitations under Florida’s statutes of limitation, after which criminal prosecutions are barred. The statute of limitation for prosecuting a criminal case begins to run the day after the offense is committed. Id.

An offense is deemed to have been committed when either every element of the offense has occurred or if it plainly appears that the legislative purpose is to prohibit a continuing course of conduct at the time when the course of conduct or the defendant’s complicity therein is terminated. Id.

Section 775.15, F.S., provides the following time limitations for initiating a criminal prosecution for a felony offense: Section 775.15, F.S., provides the following time limitations for initiating a criminal prosecution for a felony offense:

• No time limitation for prosecuting a capital felony, a life felony, a felony resulting in death (Section 775.15(1), F.S.);

• No time limitation for any sexual battery on a victim younger than 16 (Section 775.15(13)(c), F.S.);

• A first-degree felony sexual battery on a victim younger than 18 (Section 775.15(13)(b), F.S.);

• A first or second-degree felony sexual battery and the victim reports the crime to law enforcement within 72 hours (Section 775.15(13) and (14), F.S.);

• A 10-year limitation applies to prosecutions for any felony that results in injury to a person when the felony arises from the use of a destructive device. (Section 775.15(7), F.S.);

• A 4-year time limitation applies to prosecutions for a first-degree felony (Section 775.15(2)(a), F.S.);

• A 3-year time limitation applies to prosecutions for any second or third-degree felony (Section 775.15(2)(b), F.S.).

Exceptions Based on the Establishment of the Identity of the Accused

Florida law also provides certain specific exceptions based on the identity of the accused.

For instance, for certain offenses, the case may be prosecuted at any time after the date on which the offender’s identity is established (or should have been established through the exercise of due diligence through the analysis of DNA evidence).

Those exceptions based on the discovery of the identity of the accused include:

• sexual battery;
• lewd or lascivious acts or offenses;
• aggravated battery;
• any felony battery offense charged under Chapter 784, F.S.;
• kidnapping;
• false imprisonment;
• burglary;
• robbery;
• carjacking, and
• aggravated child abuse.

If a DNA sample is a basis for the exception, then for these prosecutions, the DNA sample must be available for testing by the accused. See Section 775.15(16)(a)4., F.S.

Exceptions to the Statute of Limitations Based on the Age of the Victim

Florida law also provides an extension of time for certain types of charges if a victim is under the age of 18, including:

• sexual battery;
• lewd or lascivious behavior;
• incest;
• statutory rape under former s. 794.05, F.S.,
• computer pornography.

In these cases, Section 775.15(13)(a) provides that the applicable limitation period does not begin to run until the victim reaches the age of 18 or the violation is reported to a law enforcement or governmental agency, whichever occurs first.

If a victim 18 years or older reports a first or second-degree felony sexual battery within 72 hours of the crime, there is no statute of limitations.

If the victim does not report the crime within this time period, the statute of limitations is four (4) years for a first-degree felony sexual battery.

As provided in Section 775.15(14), F.S., first-degree felony sexual battery is defined as non-consensual sexual battery under certain enumerated circumstances, including in part, the victim is physically helpless to resist, the victim is threatened, the victim is physically or mentally incapacitated, or the offender is law enforcement. Section 794.011(4), F.S.

If the victim does not report the crime within this time period, the statute of limitations is three (3) years for a second-degree felony sexual battery.

Likewise, if a 16 or 17-year-old victim of a second degree felony sexual battery does not report the crime within 72 hours, the applicable time period to bring a prosecution is three (3) years.

As provided in Section 775.15(14), F.S., second-degree felony sexual battery is defined as a non-consensual sexual battery without the use of physical force or violence likely to cause serious personal injury. Section 794.011(5)(b), F.S.

The 3-year limitation does not commence until the earlier of the date that the victim turns 18 or the crime is reported. Section 775.15(13)(a), F.S.

One-Year Discovery Exception for Video Voyeurism

Florida Statute Section 775.15, provides an exception to the general rules for the statute of limitations in subsection (17), which applies to video voyeurism crimes prosecuted under Section 810.145.

The exception provides:

“[i]n addition to the time periods prescribed in this section, a prosecution for video voyeurism in violation of s. 810.145 may be commenced within 1 year after the date on which the victim of video voyeurism obtains actual knowledge of the existence of such a recording or the date on which the recording is confiscated by a law enforcement agency, whichever occurs first.

Any dissemination of such a recording before the victim obtains actual knowledge thereof or before its confiscation by a law enforcement agency does not affect any provision of this subsection.”

When Must the Statute of Limitation Defense Be Raised?

Before 2018, the Florida Supreme Court had never expressly considered the rules for preserving a statute-of-limitations defense.

But in State vs. Smith, the Court held that the statute of limitations does not make timeliness a nonwaivable issue of jurisdiction. Id. at ___ (citing § 775.15, Fla. Stat. (2017); § 775.15, Fla. Stat. (Supp. 1990)).

In other words, a defendant must raise a claim that conviction of a charged offense violates the statute of limitations in the trial court to preserve the issue for a direct appeal.

A similar concept was explained in Musacchio v. United States, 136 S. Ct. 709, 718 (2016), then the United States Supreme Court, when considering the federal statute of limitations, explained that:

[A] statute-of-limitations defense becomes part of a case only if the defendant puts the defense in issue.

When a defendant presses a limitations defense, the Government then bears the burden of establishing compliance with the statute of limitations by presenting evidence that the crime was committed within the limitations period or by establishing an exception to the limitations period.

When a defendant fails to press a limitations defense, the defense does not become part of the case, and the Government does not otherwise have the burden of proving that it filed a timely [charging document].

When a defendant does not press the defense, then, there is no error for an appellate court to correct — and certainly no plain error.

Florida Statute of Limitations for Civil Cases

The statute of limitations for civil cases can be found in Florida Statutes, Section 95.11. A summary of those rules provide:

• One year – Limit on claims to enforce a payment bond involving a contract or subcontractor;
• Two years – Defamation, libel, or slander claims;
• Two years – claims involving payment of wages and overtime;
• Four years – claims involving fraud;
• Four years – claims involving the design, planning, or construction of real property;
• Four years – breach of an oral contract;
• Five years – breach of a written contract; and
• Twenty years – actions to recover a Florida judgment.

The time begins when run when the claim “accrues.” The claim accrues when the last element constituting the cause of action occurs.