 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
State v. Douglas11/2/2005
Before COPE, C.J., and SHEPHERD and ROTHENBERG, JJ.
The question before us is whether the trial court correctly dismissed one count of a two-count information on the theory that the statute of limitations had expired. We conclude that the charge was timely filed and remand for further proceedings.
I.
Defendant-appellee Derrek Carnell Douglas was charged with sexual battery and kidnapping. At his original trial, the court gave (over defense objection) an instruction on aggravated battery as a lesser included offense of the charge of sexual battery. The defendant was convicted of that lesser offense, aggravated battery, as well as false imprisonment as a lesser included offense of the charge of kidnapping.
On appeal to this court, the defendant argued that based on the wording of the charging document, aggravated battery was not a proper lesser included offense for the sexual battery charge. The court said:
The State correctly concedes that the conviction for aggravated battery cannot stand because the information charging Douglas with sexual battery does not allege the essential elements of aggravated battery: That defendant intentionally or knowingly caused great bodily harm.
Douglas v. State, 841 So. 2d 697, 698 (Fla. 3d DCA 2003) (citations omitted). The State also conceded that there had been a jury selection error which required a new trial. Id. This court reversed the judgment and remanded the case to the trial court.
On remand, the State filed a new information ("the second information") which charged the defendant with aggravated battery and false imprisonment. The defense moved to dismiss the aggravated battery charge as being barred by the statute of limitations. The defense argued that the second information did not relate back to the time of filing of the original sexual battery charge. The trial court agreed with the defense position and dismissed the aggravated battery count. The State has appealed. See Fla. R. App. P. 9.140(c)(1)(A).
II.
This court has said that subsequently-filed informations "will not be subject to the statute of limitations when they are shown to be connected with and in continuation of a prosecution timely begun." State v. Adjmi, 170 So. 2d 340, 343 (Fla. 3d DCA 1964) (citing Mead v. State, 101 So. 2d 373 (Fla. 1958)). The question is whether a sufficient connection has been shown to exist in this case.
The defendant was convicted of aggravated battery in the original trial, and the second information is for the offense of aggravated battery. In the defendant's original appeal, this court ruled that the original information (which charged sexual battery) did not include aggravated battery as a lesser included offense because the sexual battery charge omitted an essential element: "That defendant intentionally or knowingly caused great bodily harm." Douglas, 841 So. 2d at 698 (citations omitted). The defendant contends that by adding the missing essential element, the State has lodged a new charge against the defendant which cannot be viewed as a continuation of, or sufficiently linked with, the original prosecution.
While the defendant's argument is a substantial one, we conclude that sufficient linkage exists in this case and that the charge should not have been dismissed.
The original information for sexual battery contained a reference which we interpret as being a reference to the offense of aggravated battery. The original information on the sexual battery charge alleged in part that the defendant "used actual physical force likely to cause serious personal injury, in violation of § 794.011(3) and § 775.087, Fl
Page 1 2 Florida Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|