How Long Does the State Have to File Charges in Florida?

When is it too late to file criminal charges? Answering this question requires in-depth knowledge of the given state’s Statute of Limitations. A Statute of Limitations generally refers to a law that bars claims after a certain period of time passes after an injury. 

This article seeks to guide defense attorneys practicing within the State of Florida’s Statute of Limitations with respect to criminal cases.

How Long Does the State Attorney Have to File Charges in Florida?

Classifying crimes according to the Statute of Limitations

Under Florida’s Statute of Limitations, the length of time as to when the state is allowed to file charges, or the prescriptive period, will depend on the nature of the crime involved. In general, there are two categories of crimes under the Statute of Limitations. These are:

  • Crimes where the state is allowed to file charges at any time.
  • Crimes where the state is given a certain number of years to file charges.

The reckoning point: when do we start counting?

Under the Florida Statute of Limitations, the reckoning point of the periods designated shall be counted from the time that the felony or offense was committed. A felony or offense is considered “committed” when:

  • Each and every element of the felony or offense 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 Florida Statute of Limitations explicitly states that the running of the period starts on the day after the offense is committed. For example, if a non-capital felony of the first degree was committed on May 31, 2021, the four-year period allowed by law for the filing of criminal charges will only start to run on June 1, 2021 and will expire on June 1, 2025.

However, there are instances under the law that will “pause” the prescriptive period, up to a maximum of three additional years. These instances include:

  • When the defendant is continuously absent from the state; or
  • When the defendant has no reasonably ascertainable place of abode or work within the state.

Thus, in the same example above, where the four-year prescriptive period starts to run on June 1,  2021, the said period will not expire on June 1, 2025 if any of these two circumstances are present. So, if the defendant was continuously absent for, say, one year, the four-year period will then expire on June 1, 2026.

Crimes where the State is allowed to file charges at any time

Under the Florida Statute of Limitations, the state is allowed to commence criminal action at any time for the following felonies and offenses:

  • Capital felonies, life felonies or those that resulted in death.
  • Perjury in an official proceeding that relates to the prosecution of a capital felony.
  • Sexual battery, in the following instances:
  1. Where it amounted to a first or second degree felony and which was reported to authorities within 72 hours after its commission.
  2. Where it amounted to a first degree felony where the victim was under 18 years of age at the time of its commission.
  3. Where the victim was under 16 years of age at the time of its commission, regardless if it amounted to first or second degree felony.
  4. Any of the following offenses punished under Florida Law wherein the identity of the accused has been established through DNA analysis of evidence collected at the time of investigation and has been preserved and available for testing by the accused:

 Aggravated battery or any felony battery offense

  • Kidnapping
  • Sexual battery
  •  Lewd or lascivious offense
  • Burglary
  • Robbery
  • Carjacking
  • Aggravated child abuse

Crimes where the state is only allowed specific periods to file charges

In general, Florida’s Statute of Limitations provides specific periods for the filing of charges for the general types of crimes and misdemeanors, namely:

  • Felony of the first degree – Within 4 years after it is committed.
  • Any other felony – Within 3 years after it is committed.
  • Misdemeanor of the first degree – Within 2 years after it is committed.
  • Misdemeanor of the second degree or a noncriminal violation – Within 1 year after it is committed.

On the other hand, the same statute also provides the periods for filing of specific types of crimes and misdemeanors, namely:

  • Felony that resulted in injury to any person, when such felony arises from the use of a “destructive device” – Within 10 years after it is committed.
  • Violation of Florida’s Environmental Control laws – Within 5 years from the date of violation.
  • Abuse, neglect and exploitation of elderly persons or disabled adults – Within 5 years after it is committed.
  • Insurance fraud – Within 5 years after it is committed.

What happens if the periods have expired

Generally, when these periods expire without any criminal charge having been filed, the state will be barred from pursuing any criminal action. However, the Florida Statute of Limitations provides two exceptions to this general rule.

  1. The first exception is when one of the essential elements of an offense or felony is either fraud or a breach of fiduciary obligation. In this case, the period for filing charges shall no longer be those provided for above; instead, the state is allowed to file charges within 1 year after the discovery of the offense by the victim or the person legally representing the victim, but who is not the perpetrator of the offense or felony.
  2. The second exception is when the offense or felony involves a misconduct in office by a public officer or employee. In this case, the state is allowed to file charges within the greater period:
  • Within the relevant periods allowed under the Statute of Limitations, as discussed previously; or
  • Within two years from the time the alleged perpetrator leaves public office or employment.
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Final Thoughts

Protecting the rights of persons who have been arrested or are facing criminal charges is the primordial duty of defense attorneys. One of these rights conferred is the prescriptive period provided under the Statute of Limitations. Defense attorneys in Florida would be in the best position to defend their clients if they are well-versed with the provisions of the Florida Statute of Limitations. They can use this statute to have a criminal case dismissed on the ground that the right to file charges by the State has already prescribed.

Some crimes do have expiration dates, after all.

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