FIFTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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Case No. 5D23-3126
LT Case No. 2021-MM-045048-A
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ADRIENNE NICOLE WHITTAMORE,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
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Petition for Writ of Prohibition.
A Case of Original Jurisdiction.
Blaise Trettis, Public Defender, Viera, and Raylene Huls-
Strickler Coe, Assistant Public Defender, Titusville, for
Petitioner.
Ashley Moody, Attorney General, Tallahassee, and Marissa V.
Giles, Assistant Attorney General, Daytona Beach, for
Respondent.
December 21, 2023
SOUD, J.
Petitioner Adrienne Whittamore seeks a writ from this Court
prohibiting her prosecution below, arguing that the State failed to
commence the prosecution within the time established by the
statute of limitations in section 775.15, Florida Statutes (2020).
We have jurisdiction. See Art. V, § 4(b)(3), Fla. Const.; Fla. R. App.
P. 9.030(b)(3); Fla. R. App. P. 9.100. The petition is denied.
I.
Whittamore stands charged below with one count of Soliciting
Lewdness (First Offense), a second-degree misdemeanor. The
information, filed September 15, 2021, alleges she committed the
offense on November 10, 2020, in Brevard County, Florida.
On September 17, 2021, a summons was issued to Whittamore
at her last known address on Catalina Street, where she lived at
the time of the charged offense. The summons was returned
unserved on October 23, 2021, and marked “did not respond to
mailer.” Thereafter, a capias was issued for Whittamore’s arrest
on November 5, 2021. The capias shows her last known address as
“General Delivery” in Titusville, which is the same as reflected on
her driver’s license. The capias was not executed until February
23, 2022, in Brevard County, Florida, where Whittamore asserts
she has lived continuously since 2019.
Whittamore filed her motion to dismiss, asserting that the
one-year statute of limitations expired on November 11, 2021,
before the capias was executed. The State argued that the statute
of limitations was tolled until the time of Whittamore’s arrest
because she had no reasonably ascertainable place of abode or
work within the state, as contemplated by section 775.15(5),
Florida Statutes.
During hearing on the motion, evidence established that
Whittamore was unemployed and had lived at no fewer than three
locations since November 10, 2020, though timeframes provided
were vague and uncertain because—as Whittamore testified—
“[she] can’t just remember it off the top of [her] head” where she
had lived “for every time period.”
The trial court denied the motion, concluding the statute of
limitations was tolled until Whittamore was arrested because
“[t]he Defendant's itinerant lifestyle and lack of employment
prevents her from having a reasonably ascertainable place of
abode or work from the date of the alleged crime through the date
of the arrest and possibly longer.” This petition followed.
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II.
Whittamore argues the capias was not executed without
unreasonable delay as required by section 775.14(4)(b) because
there is no evidence the State was diligent in its efforts to locate
her. Since the capias was executed more than one year after the
charged offense, she concludes the prosecution is barred because it
was not commenced within the statute of limitations.
Whittamore’s argument fails.
A.
A petition for writ of prohibition is the proper vehicle for
challenging a trial court’s denial of a motion to dismiss based on
the expiration of the statute of limitations. See Carcaise v. Durden,
382 So. 2d 1236 (Fla. 5th DCA 1980). However, prohibition is an
extraordinary remedy employed only when necessary to “prevent
courts from acting where there is no jurisdiction to act (rather than
to prevent an erroneous exercise of jurisdiction).” Sutton v. State,
975 So. 2d 1073, 1076 (Fla. 2008) (citation omitted). As such, the
discretionary writ is narrow and to be issued by Florida courts
“with great caution” and only in emergencies “where there is no
other ‘appropriate and adequate legal remedy.’” Fetzer v. State,
360
So. 3d 1173, 1174 (Fla. 5th DCA 2023), review denied, No. SC2023-
0692,
2023 WL 7325389 (Fla. Nov. 7, 2023) (first quoting English
v. McCrary,
348 So. 2d 293, 296 (Fla. 1977); and then quoting
Sutton,
975 So. 2d at 1076). 1
1 “[Prohibition] is preventive and not corrective in that it
commands the one to whom it is directed not to do the thing which
the supervisory court is informed the lower tribunal is about to do.
Its purpose is to prevent the doing of something, not to compel the
undoing of something already done.” English,
348 So. 2d at 296–
97; see also State v. Jackson,
306 So. 3d 936, 945 (Fla. 2020) (citing
English). Prohibition “was never designed to prevent the erroneous
exercise of an existing jurisdiction, or to be used as a substitute for
a writ of error or appeal.” Fetzer, 360 So. 3d at 1175 (quoting State
ex rel. Cacciatore v. Drumright,
156 So. 721, 723 (Fla. 1934)).
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B.
As Whittamore has raised the statute of limitations as
grounds for dismissal of charges, the State has a “significant
burden” to prove the prosecution is not barred. Robinson v. State,
205 So. 3d 584, 590 (Fla. 2016) (citing State v. King,
282 So. 2d 162,
164 (Fla. 1973)).
1.
Generally, when calculating the statute of limitations, “[t]ime
starts to run on the day after the offense is committed.” § 775.15(3),
Fla. Stat. Whittamore is charged with Soliciting Lewdness (First
Offense) on November 10, 2020. Prosecution for this charged
second-degree misdemeanor must be commenced within one year
of commission of the crime. See § 775.15(2)(d), Fla. Stat.
When, as here, an accused has not been either arrested or
served with a summons at the time of the offense, the prosecution
is deemed to have commenced “when either an indictment or
information is filed, provided the capias, summons, or other
process issued on such indictment or information is executed
without unreasonable delay.” § 775.15(4)(b), Fla. Stat. 2 In
evaluating whether a delay in execution of the capias or summons
is reasonable, “inability to locate the defendant after diligent
search or the defendant’s absence from the state shall be
considered.” Id. However, and importantly, “[t]he period of
limitation does not run during any time when the defendant is
continuously absent from the state or has no reasonably
ascertainable place of abode or work within the state.” § 775.15(5),
Fla. Stat.
In this case, even though the information was filed prior to the
expiration of the one-year statute of limitations, the capias was not
executed until February 2022, some fifteen months after the
charged offense. Therefore, Whittamore posits, the case must be
dismissed because the State failed to meet its burden of
2 When an individual has been previously arrested or served
with a summons for a crime, prosecution is commenced by the
filing of the indictment or information. § 775.15(4)(a), Fla. Stat.
4
establishing the capias was executed without unreasonable
delay—i.e., the State failed to show that it conducted a diligent
search to locate her and execute the capias before November 11,
2021.
Whittamore’s argument is unavailing because, while sections
775.15(4)(b) and 775.15(5) address similar matters related to the
State’s failure to execute the capias upon Whittamore before
November 11, 2021, each subsection operates independently from
the other. See State v. Picklesimer,
606 So. 2d 473, 475 (Fla. 4th
DCA 1992). Section 775.15(4)(b) allows the state to “relate back”
the date of service of the summons or capias to the date the
information was filed if such was executed without unreasonable
delay.
Id. When a delay in the service of the summons or capias
occurs because of the absence of an accused or an inability to locate
an accused, a delay in execution is reasonable when the State
conducts a diligent search to locate the defendant. See Walker v.
State,
543 So. 2d 353, 355 (Fla. 5th DCA 1989) (“Since this capias
was executed after the three-year limitation period had expired,
the state had the burden of proving that it had been diligent in its
efforts to execute the capias in order to establish that the
prosecution was timely.”).
On the other hand, section 775.15(5) provides that the statute
of limitations is tolled when an individual is either “continuously
absent from the state or has no reasonably ascertainable place of
abode or work within the state.” § 775.15(5), Fla. Stat. Different
than the relation back allowed by section 775.15(4)(b), section
775.15(5) provides that the statute is tolled—that the statute does
not begin to run—when a defendant is continuously absent from
the state or has no reasonably ascertainable place of abode or work
in the state. Simply stated, section 775.15(5) allows for the delay
of the commencement of prosecution involving a defendant with
such a status.
The State does not suggest Whittamore was continuously
absent from the State. Rather, the State asserts the one-year
statute of limitations was tolled because Whittamore had “no
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reasonably ascertainable place of abode or work in the state.” 3 See
§ 775.15(5), Fla. Stat. Two categories of defendants are
contemplated by this language in section 775.15(5): (1) a defendant
who, in fact, has no fixed place of abode or employment because he
or she moves about from place to place on a continual basis, and
(2) a defendant whose circumstances are such that his or her place
of abode or employment could not reasonably be ascertained from
obvious sources of information. See generally Cunnell v. State,
920
So. 2d 810, 813 (Fla. 2d DCA 2006).
In this case sub judice, Whittamore had no reasonably
ascertainable place of abode as contemplated by section 775.15(5).
The State initially endeavored to serve a summons upon
Whittamore at her last known address on Catalina Street in
Titusville. The summons was returned unserved. Thereafter, a
capias was issued for Whittamore that identified her address as
“General Delivery” in Titusville, which is the same address as
reflected on her Florida driver’s license. Further, the State
established through Whittamore’s testimony that she resided at no
fewer than three locations from the time of the November 10, 2020
offense forward. The timeframes she provided for various
residences were at best vague and uncertain. Indeed, Whittamore
herself testified “[she] can’t just remember it off the top of [her]
head” where she had lived “for every time period.” As a result,
Whittamore had no reasonably ascertainable place of abode
pursuant to section 775.15(5). Therefore, the statute of limitations
was tolled until Whittamore was arrested on the capias. The
prosecution is not barred.
2.
Since the statute of limitations was tolled, we need not
address whether the capias was executed without unreasonable
delay as required by section 775.15(4)(b). Yet, Whittamore argues
that under section 775.15(5) the State was required—and failed—
to provide evidence of its diligent search for her. By her argument,
Whittamore asks us to write into 755.15(5) the diligent search
3 There is no claim by Whittamore that she had an
ascertainable place of work. Indeed, at the hearing on her motion
to dismiss, she testified she was unemployed.
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requirements born of section 755.15(4)(b). We decline
Whittamore’s invitation.
The plain language of section 775.15(5) places no requirement
on the State to conduct a diligent search for a defendant. As the
Florida Supreme Court recognized in Robinson when construing
the continual absence contemplated by section 755.15(5):
Nowhere in section 775.15 does the statute
require the State to prove that the continuous
absence hindered the prosecution or that the
State made a diligent search for a defendant
who is continuously absent in order to toll the
limitations period. Robinson cannot point to any
express language imposing such a requirement[]
but argues, “[s]ome burden must be imposed on law
enforcement to look for a criminally accused over
the span of several years.” This contention is
primarily a policy argument for what Robinson
contends should be required, but no such burden is
imposed by the plain and ordinary language of the
statute. Whether proof of a diligent search
should be required for purposes of the tolling
provision in section 775.15(5) is a policy
matter best considered by the Legislature and
not a requirement to be engrafted onto the
statute by the courts. . . . Accordingly, we will
not engraft onto section 775.15(5) any
requirements that the State must prove it
conducted a diligent search or that the
defendant’s absence hindered the prosecution when
the State has established that the defendant was
continuously absent from the state during the
limitations period.
Robinson,
205 So. 3d at 591 (emphases added).
The same reasoning applies here. Nothing in section 775.15
requires the State to conduct a diligent search for an individual
who has no reasonably ascertainable place of abode or work within
the state. Different than section 775.15(4)(b)—which focuses on
the State’s efforts to locate a defendant for purposes of determining
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unreasonable delay in service of the capias—section 775.15(5)
focuses on the status of a defendant as being “continuously absent
from the state” or having “no reasonably ascertainable place of
abode or work within the state” for tolling the statute. See
775.15(5), Fla. Stat. Certainly, to demonstrate that the applicable
statute of limitations is tolled under this provision of section
775.15, the State must show it was unable to ascertain a
defendant’s place of abode or work after reasonable efforts to do so.
However, the plain language of the statute requires reasonable
efforts to ascertain, which is different than—and does not rise to
the level of—performing a diligent search for such person.
III.
As Whittamore did not have a reasonably ascertainable place
of abode or work within the state as contemplated by section
775.15(5), Florida Statutes, the one-year statute of limitations was
tolled. The prosecution below is not barred. Therefore, the petition
for writ of prohibition is DENIED.
It is so ordered.
JAY and BOATWRIGHT, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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