State v. Fernandez

Third District Court of Appeal
State of Florida
Opinion filed August 20, 2014.
Not final until disposition of timely filed motion for rehearing.
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No. 3D13-435
Lower Tribunal No. 12-28444
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The State of Florida,
Appellant,
vs.
Aurora Fernandez,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Rodney Smith,
Judge.
Pamela Jo Bondi, Attorney General, and Michael W. Mervine, for appellee.
Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public
Defender, for appellant.
Before SHEPHERD, C.J., and ROTHENBERG and SALTER, JJ.
SALTER, J.
On Partial Concession of Error
The State of Florida appeals orders dismissing a two-count information
alleging unemployment compensation fraud (section 443.071(1), Florida Statutes
(2012)) and grand theft (section 812.014(2)(c), Florida Statutes (2012)), based on
unemployment benefits fraud. The trial court dismissed both counts based on the
statute of limitations.
With respect to Count II, grand theft, the defendant has properly conceded
that the applicable statute of limitations is the five-year period specified in section
812.035(10), Florida Statutes (2012), rather than the three-year statute applied by
the trial court based on arguments advanced by the defendant’s counsel at the time.
All of the allegedly-criminal acts set forth in Count II occurred within the five-year
period preceding the filing of the information. We thus reverse the order of
dismissal as it relates to Count II, and remand the case to the trial court for further
proceedings.
With respect to Count I, unemployment compensation fraud, section
775.15(2)(b), Florida Statutes (2012), provides that such a prosecution “must be
commenced within 3 years after it is committed.” The information, filed
December 4, 2012, alleged that the false statements or knowing, material non-
disclosures by the defendant occurred between November 10, 2008 and February
10, 2010. The affidavit submitted in support of the arrest warrant listed 21
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allegedly-fraudulent benefit payments obtained by the defendant between
November 25, 2008, and February 9, 2010; only four of these were issued within
the three-year statute of limitations. Each fraudulently-obtained payment of
benefits is a separate violation under section 443.071(1). See State v. Dominguez,
27 So. 3d 782 (Fla. 3d DCA 2010). The trial court erred in dismissing Count I in
its totality, though the State’s case may be limited to those allegedly-criminal acts
that were within the three-year period preceding the filing of the information.
Reversed and remanded for further proceedings in accordance with this
opinion.
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