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Orlando Criminal Defense Lawyer > Blog > Burglary Trespassing > How DNA Evidence Can Affect Your Rights Under Florida’s Criminal Statute of Limitations

How DNA Evidence Can Affect Your Rights Under Florida’s Criminal Statute of Limitations


The prosecution of many criminal offenses in Florida is subject to a statute of limitations. This refers to the time period the state has to formally charge the accused. It does not mean the state has to actually try the accused within the limitations period, although that is subject to separate constitutional protections for the right to a “speedy trial.”

Florida’s statute of limitations for felonies of the second degree or lower is normally 3 years from the date the crime was allegedly committed. But there are exceptions. For example, the state can initiate a prosecution for certain types of felonies, such as burglary or sexual battery, at any time after using DNA evidence to establish the suspect’s identity, provided that a “significant portion” of that evidence was collected during the original police investigation, and that evidence is “preserved and available for testing by the accused.”

Fifth District Bars Burglary Prosecution

In cases where the state relies on DNA evidence to prosecute a case outside of the normal statute of limitations, it is the prosecution’s burden to prove they have met the statutory requirements. A recent decision from the Florida Fifth District Court of Appeal, Bowers v. State, offers a case where the state did not meet that burden. As a result, the appellate court barred the defendant’s prosecution on a burglary charge.

In this case, the state initiated its burglary prosecution after the 3-year statute of limitations had already expired. The prosecution then tried to invoke the DNA evidence exception. The defense did not dispute that the state used DNA evidence to identify him as the burglary suspect. But he did point out the prosecution failed to show that a significant portion of that DNA evidence was preserved and available for testing by the defense, as is required by the law.

The state said it had a lab report that stated the DNA evidence was available. The Fifth District noted, however, that report was dated “more than two years” before the trial court held an evidentiary hearing on the defendant’s motion to dismiss the burglary charge. The trial judge did not see an issue and denied the motion to dismiss. The Fifth District said that was a legal error. Merely stating DNA evidence was still available in an outdated report did not meet the statutory requirements, according to the appellate court. And since the state presented no other evidence on this point, the defendant was entitled to dismissal based on the statute of limitations.

Contact the Joshi Law Firm Today

Like all felonies, a burglary conviction carries serious consequences in Florida. So if you are the person facing charges, it is important to work with an experienced Orlando burglary and trespassing lawyer who will carefully scrutinize the state’s case and identify any potential defenses that can help secure an outcome in your favor. Contact the Joshi Law Firm, PA, today to schedule a free consultation.




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