Failure to State the Reason the Offense Is Not Time Barred
Initially, X was charged with two counts of robbery. After X failed to appear on the robbery charges, on June 20, 1989, he was charged with one count of failure to appear.
X was eventually located in Massachusetts and extradited to Pinellas County, Florida, in 1996. on March 11, 1997, he pleaded nolo contendere to all of the above-referenced charges.
He was sentenced to ten years of imprisonment as a habitual felony offender on two counts of robbery and one count of failure to appear, all to run concurrently. He did not pursue a direct appeal of his convictions and sentences.
Subsequently, on December 4, 1998, X filed a timely motion for postconviction relief. the trial court issued an order to show cause as to why he was not entitled to the relief.
The state filed its response to the order to show cause on May 17, 1999. on August 5, 1999, the trial court issued an order denying in part X' motion for postconviction relief and directing an evidentiary hearing.
Prior to the evidentiary hearing, X filed a motion to amend or supplement his motion for postconviction relief with an incorporated memo of law.
The amended motion claimed fundamental error in that the statute of limitations had expired on the failure to appear charge and that the state allegedly failed to establish the statute was tolled by its due diligence.
The trial court granted X' motion for postconviction relief. According to the order under review, the state fundamentally erred in failing to establish due diligence in its efforts to locate X.
Despite a determination that the statute of limitations was not mentioned during the plea and sentencing proceeding, the trial court found the absence of evidence on the issue of due diligence resulted in a lack of jurisdiction to convict and sentence X on the failure to appear charge.
As such, the trial court ruled that the failure to appear charge should be dismissed.
Based on its decision to dismiss the failure to appear charge, the trial court further ordered that X be allowed to withdraw his plea on the robbery charges.
According to the order, the plea could be withdrawn because X alleged he would not have entered a plea had he known the statute of limitations had expired on the failure to appear charge and because he would have proceeded to trial on the robbery charges.
We first note that the circumstances which gave rise to this appeal were known to X at the time he entered his plea of nolo contendere, and he did not allege any error for direct appeal.
The sole defect now being complained of has to do with the state's failing to establish and allege in the charging document that the offenses were not time barred by reason of the statute of limitations. See 775.15(5), Fla. Stat. (1989).
Failure to state the reason the offense is not time barred within the charging document has been held to be error. See, e.g., Sturdivan v. State, 419 So. 2d 300 (Fla. 1982); Whitfield v. State, 620 So. 2d 1027 (Fla. 1st DCA 1993).
We conclude that X, by his nolo contendere plea, waived any statute-of-limitations defense and cannot now obtain postconviction relief because of this deficiency.