DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
WILGY THERLONGE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D13-2024
[May 20, 2015]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Richard L. Oftedal, Judge; L.T. Case No.
2011CF010869AMB.
Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven
Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
FORST, J.
Appellant Wilgy Therlonge was convicted of lewd and lascivious battery
of a person under sixteen years of age. His appeal challenges the trial
court’s construction of section 775.15(16)(a)4., Florida Statutes (2007),
which extends the statute of limitations for lewd and lascivious offenses.
As Appellant’s DNA was not obtained during the “original investigation”
within the meaning of the statute, we reverse.
Background
On January 10, 2008, police were informed that a sixteen-year-old girl
gave birth about a month prior. At the time of conception, the girl was
fifteen. Police began investigating Appellant, a twenty-nine-year-old, since
he was named as the father on the child’s birth certificate. Appellant
learned of the investigation and apparently fled the state. Over the course
of three years, the case was declared “inactive” at least twice, but remained
open while officers made intermittent attempts to locate Appellant.
Eventually, Appellant was located on October 11, 2010. Police obtained
a DNA sample from him at that time, and took samples from the girl and
her baby the next day. The DNA results, received by law enforcement on
or about April 1, 2011, could not exclude Appellant as the father of the
child. At this point, the police requested a warrant to arrest Appellant.
On October 7, 2011—after the statute of limitations period expired as
over three years had passed since the crime was reported to law
enforcement—Appellant was charged with lewd and lascivious battery of a
person under sixteen years of age. Despite the time lapse, the State argued
that it was permitted to continue the prosecution under section
775.15(16)(a), which provides an extension to the statute of limitations
period in certain circumstances:
In addition to the time periods prescribed in this section, a
prosecution for [a lewd or lascivious offense] may be
commenced at any time after the date on which the identity of
the accused is established, or should have been established
by the exercise of due diligence, through the analysis of
deoxyribonucleic acid (DNA) evidence, if a sufficient portion of
the evidence collected at the time of the original investigation
and tested for DNA is preserved and available for testing by the
accused[.]
§ 775.15(16)(a)4., Fla. Stat. (2007) (emphasis added).1
Appellant moved to dismiss the charge, arguing that section
775.15(16)(a) could not be applied to his case because his DNA was not
obtained during the “original investigation” within the meaning of the
statute. The trial court denied the motion, noting that, between 2008 and
2010, law enforcement was “always exercising due diligence to try and find
[Appellant]; therefore, the investigation, the original investigation never
ceased and it was ongoing.” Subsequently, Appellant was convicted,
declared a sexual offender, and sentenced to thirteen years imprisonment.
Analysis
We review issues of statutory interpretation de novo. D.A. v. State,
11
So. 3d 423, 423 (Fla. 4th DCA 2009).
When confronted with a question of statutory interpretation, the
1 No such extension of the statute of limitations is available for the charge of
impregnation of a child.
2
reviewing court must first look to the statute’s actual language. Bryan v.
State,
865 So. 2d 677, 679 (Fla. 4th DCA 2004). “In analyzing statutory
language, reviewing courts must give the statutory language its plain and
ordinary meaning, ‘and cannot add words which were not placed there by
the Legislature.’” State v. Little,
104 So. 3d 1263, 1265-66 (Fla. 4th DCA
2013) (quoting Brook v. State,
999 So. 2d 1093, 1097 (Fla. 5th DCA 2009)).
We reject the trial court’s conclusion that there was an “original,
ongoing investigation” (emphasis added) sufficient to trigger the extension
period of section 775.15(16)(a)4. Our decision is dictated by the plain
language of the statute and the fact that no DNA evidence of the crime was
collected during the “original investigation” to preserve for comparison
against an accused and thus trigger the application of the extension period
under section 775.15(16)(a)4. During the period when police first learned
of the potential lewd and lascivious behavior until the time the case was
initially declared “inactive,” the onus was on the police to collect evidence
to preserve for a later match—in this case, the DNA of the child. DNA
evidence was collected only after Appellant was located by the investigating
police department upon being arrested for a different charge, well after the
original investigation had first been declared “inactive.”
Conclusion
We reverse and vacate Appellant’s conviction and sentence, including
his designation as a sexual offender, as the extension of the statute of
limitations period under section 775.15(16)(a) is inapplicable in the instant
case. Appellant’s prosecution was commenced over three years after the
alleged crime was first reported and thus the statute of limitations has
run. Accordingly, we direct Appellant's immediate discharge with respect
to the charge at issue in this case.
Reversed.
WARNER and GROSS, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
3
