5D00-3293 Starling v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D00-3293

Case Date: 11/12/2001

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2001

GLEN M. STARLING, Appellant, v. Case No. 5D00-3293 STATE OF FLORIDA, Appellee. / Opinion filed November 16, 2001 Appeal from the Circuit Court for Orange County, R. James Stroker, Judge. James B. Gibson, Public Defender, and A.S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Tammy L. Jaques, Assistant Attorney General, Daytona Beach, for Appellee. SAWAYA, J. Glen Starling appeals the order of the trial court denying his motion to dismiss an information charging him with resisting arrest with violence on the ground that the prosecution was barred by the applicable statute of limitations. We conclude that the trial court properly denied the motion. Accordingly, we affirm. Starling was arrested on March 8, 1993, and appeared at his first appearance on March 10, where he was appointed the services of a public defender. The trial court set a pretrial conference for March 29. On March 18, prior to the State filing an information, attorney

H. Scott Gold [Gold] on behalf of Starling filed a notice and waiver of appearance, a plea of not guilty, and a notice of intention to participate in discovery. The State filed the information on May 4, 1993, and on May 6, the trial court sua sponte entered its order scheduling a pretrial conference for July 12 and the trial for July 19. The order also provided that Starling was required to attend both the pre-trial conference and trial. The Clerk of the Court certified that a copy of the order had been furnished "by mail or delivery" to Gold and the State on May 6. Neither Gold nor Starling appeared at the July 12 pre-trial conference, so the trial court issued a capias for his arrest. Approximately seven years later, on August 10, 2000, Starling was arrested in Georgia pursuant to the capias. In September, Gold filed a motion to withdraw, which was granted. On October 5, Starling, via his new public defender, filed the motion to dismiss. After hearing testimony and argument, the trial court denied the motion, and Starling pled no contest, reserving his right to appeal. Starling submits the order denying his motion to dismiss is contrary to law and not supported by competent evidence because the State failed to establish that it noticed him or Gold that the information had been filed in May 1993. Starling, therefore, argues that the motion to dismiss should have been granted because the State did not demonstrate that the prosecution was, in accord with section 775.15(5), Florida Statutes, "commenced" prior to the expiration of the applicable statute of limitations period. The State was required to commence prosecution on Starling's resisting charge, which is a third degree felony, see section 843.01, Florida Statutes (1993), within three years from

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the date the offense was committed.

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