Waiver of Statute of Limitations Defense Florida
In Sturdivan, the Florida Supreme Court recognized that failure to supply information in a charging document that an offense is not time barred is error. See Sturdivan, 419 So. 2d at 302.
However, it is a defense that may be waived. the court stated:
Directly related to this point is the requirement that the state must show in the information or indictment that the prosecution "for the offense charged" has begun within the statute of limitations. Horton v. Mayo, 153 Fla. 611, 15 So. 2d 327 (1943); Rouse v. State, 44 Fla. 148, 32 So. 784 (1902).
The charging document may meet this requirement by showing on its face the date of the crime and the date the document issued.
If, however, it appears from the date shown on the charging document that the statute of limitations may have run, the state must allege facts necessary to show the statute was tolled for the offense charged before prosecution commenced.
The issuing of a warrant and its delivery for execution constitute circumstances which do toll the statute. If the state does not allege the tolling of the statute in an otherwise sufficient information or indictment, a defendant may by his actions waive this defense. Sturdivan, 419 So. 2d at 301-02.
We have found no case holding that the statute-of-limitations defense cannot be waived. In Tucker v. State, 417 So. 2d 1006 (Fla. 3d DCA 1982), approved, 459 So. 2d 306 (Fla. 1984), the court, after holding that even fundamental error can be waived, commented as follows:
Though the issue of whether a defendant may waive the statute of limitations for purposes of conviction appears never to have been directly addressed in Florida, we find compelling the logic of those jurisdictions which have permitted such waiver.
In People v. Lohnes, 76 Misc. 2d 507, 351 N.Y.S.2d 279 (S.Ct.1973), the court noted that the right of a defendant to waive his statute of limitations defense to a charge of a lesser-included offense was established in 1902 in New York in People v. Austin, 63 A.D. 382, 71 N.Y.S. 601, affirmed, 170 N.Y. 585, 63 N.E. 1120 (N.Y. 1902).Tucker, 417 So. 2d at 1011-12.