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Florida Supreme Court Announces SOL Defense Must be Raised at Trial to Preserve Issue for Direct Appeal

by Richard Resch

In an April 12, 2018 opinion, the Supreme Court of Florida announced that a statute of limitations (“SOL”) defense must be raised in the trial court in order to preserve the issue for direct appeal.

In 2011, DNA evidence linked Earvin Smith to a home invasion and sexual battery that took place over 20 years ago. A jury convicted him of multiple offenses, including armed burglary, which is a felony punishable by up to life in prison. The offense is subject to a four-year SOL. However, Smith never raised the SOL defense at trial.

On appeal to the Third District, he raised the SOL issue for the first time, arguing that the four-year SOL meant that the State was time-barred from prosecuting him for this offense. As a result, he claimed that his conviction and sentence must be reversed as a matter of fundamental error. The Third District agreed with him, but certified the question as a matter of great public importance to the Florida Supreme Court. Thus, the question before the Supreme Court was “whether a claim that a conviction for a charged offense is barred by the statute of limitations must be raised in the trial court to preserves the issue for direct appeal.”

The Court began its analysis by reciting the general rule in Florida that an error that has not been preserved by a contemporaneous objection can only be considered on direct appeal if the error is fundamental. Jackson v. State, 983 So.2d 562 (Fla. 2008). Whether an error is considered fundamental is a matter of law that the Court will review de novo.

The Court observed that this is an issue of first impression in Florida. However, the U.S. Supreme Court has expressly addressed this issue in Musacchio v. United States, 136 S. Ct. 709 (2016). In Musacchio, the U.S. Supreme Court explained that a SOL defense only becomes a part of a case if the defendant raises the defense. When the defendant does so, then the government bears the burden of establishing compliance with the SOL or that an exception applies. If the defendant fails to raise a SOL defense, then the issue does not become part of the case, and the government bears no burden of proof regarding the issue. The Musacchio Court concluded that when a SOL defense is not raised by the defendant, “there is no error for an appellate court to correct—and certainly no plain error.”

The Florida Supreme Court stated that the reasoning and conclusion articulated in Musacchio similarly apply to Florida’s SOL at issue in the present case. The Court explained that the SOL “does not make timeliness a nonwaivable issue of jurisdiction.” Failure to comply with the SOL does not deprive the trial court of subject-matter jurisdiction, according to the Court.

The Court then turned to the issue of fundamental error. It noted that compliance with the governing SOL is a “factual” matter that “the State must prove just as it must prove all other elements of the offense.” Crews v. State, 183 So.3d 329 (Fla. 2015). The failure to prove an element of an offense does not constitute fundamental error in most cases. F.B. v. State, 852 So.2d 226 (Fla. 2003). As such, the Court reasoned that if “failure to prove a substantive element of an offense is not fundamental error, we see no reason why failure to prove compliance with the statute of limitations should be.”

Therefore, the Florida Supreme Court announced “we adopt the [U.S.] Supreme Court’s well-reasoned approach and hold that the argument that conviction for a charged offense is barred by the statute of limitations must be raised in the trial court to preserve the issue for direct appeal.”

In dictum, the Court made it a point to note that its holding does not prevent a defendant who is prejudiced by his or her trial counsel’s “nonstrategic failure to raise” a SOL defense from making a claim for ineffective assistance of counsel in accordance with Strickland v. Washington, 466 U.S. 668 (1984).

Accordingly, the Court quashed the portion of the Third District’s opinion reversing Smith’s conviction and sentence for armed burglary and remanded the case for reinstatement of both his conviction and sentence. See: State v. Smith, 2018 Fla. LEXIS 874 (2018). 

 

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