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Statutes of Limitations

Sexual Offense Statutes

Fla. Stat. § 794.011 Sexual battery

  • (2)(a) Capital felony if offender at least 18 commits sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of, victim under 12
  • (2)(b) Life felony if offender under 18 commits sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of, victim under 12
  • (3) Life felony if offender commits sexual battery upon a victim at least 12, without that person's consent, and in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury
  • (4) Felony in the first degree if offender commits sexual battery upon a victim at least 12 under any of the following circumstances:
    • Victim is physically helpless to resist.
    • Offender coerces submission by threatening to use force or violence likely to cause serious personal injury on the victim, and the victim reasonably believes that the offender has the present ability to execute the threat.
    • Offender coerces submission by threatening to retaliate against the victim or a third person, and the victim reasonably believes that the offender has the present ability to execute the threat in the future.
    • Offender, without the prior knowledge or consent of the victim, administers or has knowledge of someone else administering to the victim any narcotic, anesthetic, or other intoxicating substance which mentally or physically incapacitates victim.
    • Victim is mentally defective and offender knows or has reason to know.
    • Victim is physically incapacitated.
    • Offender is a law enforcement officer, correctional officer, correctional probation officer, or other person in a position of control or authority in a controlled setting and such person is acting in a manner as to lead the victim to reasonably believe that the offender is in a position of control authority as an agent or employee of government.
  • (5) Felony in the second degree if offender commits sexual battery upon a person 12 years of age or older, without that person’s consent, and in the process thereof does not use physical force and violence likely to cause serious personal injury.
  • (8) First degree felony if offender who is in a position of familial or custodial authority to any person between the age of 12 and 17 commits any sexual battery act, and the willingness of the victim is not a defense.

Fla. Stat. § 794.023 Sexual battery by multiple perpetrators

  • A sexual battery that would be a felony of the second degree becomes a felony of the first degree if there were multiple perpetrators.
  • A sexual battery that would be a felony of the first degree becomes a life felony if there were multiple perpetrators.

Fla. Stat. § 794.05 Unlawful sexual activity with certain minors

  • Felony of the second degree if offender is at least 24, victim is 16 or 17, and “sexual activity” (defined as oral, anal, or vaginal penetration by, or union with, the sexual organ of another) occurs; section does not apply to a person 16 or 17 who legally has had disabilities of nonage removed.

Fla. Stat. § 800.04 Lewd or lascivious offenses committed on or in the presence of persons under 16

  • Felony of the second degree if offender engages in sexual activity with a victim at  least 12 but under 16, or encourages, forces, or entices a victim under 16 to engage in sadomasochistic abuse, sexual bestiality, prostitution, or any other sexual activity as defined by law.
  • Life felony if offender at least 18 intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing over them, of a victim under 12.
  • Felony of the second degree if offender is under 18 and intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing over them, of a victim under 12, or if offender is at least 18 and victim is at least 12 but under 16.
  • Felony of the third degree if offender is under 18 and intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing over them, of a victim at least 12 but under 16.
  • Felony of the second degree if offender 18 or older intentionally touches a person under 16 in a lewd or lascivious manner or solicits a person under 16 to commit a lewd or lascivious act.
  • Felony of the third degree if offender less than 18 intentionally touches a person under 16 in a lewd or lascivious manner or solicits a person under 16 to commit a lewd or lascivious act.

Fla. Stat. § 825.1025 Lewd or lascivious offenses committed on or in the presence of an elderly person or disabled person

  • Lewd or lascivious batter, felony of the second degree
  • Lew or lascivious molestation, felony of the third degree

Fla. Stat. § 826.04 Incest

  • Felony of the third degree

Fla. Stat. § 847.0135 Computer pornography/traveling to meet minors

  • Felony of the third degree if person uses a device capable of electronic data storage or transmission to seduce, solicit, lure, or entice a person believed to be a child to engage in unlawful sexual conduct, or attempt to gain consent from a guardian of a child for the child to engage in such conduct
  • Felony of the second degree if person travels any distance to attempt to engage in unlawful sexual conduct with a person believed to be a child after using a device capable of electronic data storage or transmission to seduce, solicit, lure, or entice a person believed to be a child to engage in unlawful sexual conduct, or attempt to gain consent from a guardian of a child for the child to engage in such conduct

 

STATUTE OF LIMITATIONS

Fla. Stat. § 775.15 Time limitations

  • (1) For prosecutions for a capital felony, a life felony, or a felony that resulted in a death, no limitation
  • (2) (a) For a felony of the first degree, within four years after commission of the offense
  • (2) (b) For any other felony, within three years after commission of the offense
  • (5) 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 (up to 3 years)
  • (13) (a) If the victim of a violation of § 794.011 (sexual battery), § 800.04 (lewd or lascivious offenses committed upon or in the presence of persons less than 16 years old), § 826.04 (incest), or § 847.0135 (Computer Pornography and Child Exploitation Prevent Act) was under 18 at the time the offense was committed, the applicable period of limitation does not begin to run until victim has reached the age of 18 or the offense is reported to a law enforcement agency, whichever occurs first
  • (13) (a) No limit if the offense is a first or second degree felony violation of § 794.011, and the offense is reported within 72 hours after its commission
  • (13) (b) No limit if the offense is a first degree felony violation of § 794.011 and the victim was under 18 at the time the offense was committed
  • (14) No limit if the victim was 18 or older at the time of commission of the offense and the offense was reported to a law enforcement agency within 72 hours after its commission; if the offense was not reported within 72 hours after its commission, the prosecution must be commenced within the time period stated above

Scharfschwerdt v. Kanarek, 553 So.2d 218, 220 (Fla. Dist. Ct. App. 1989)

  • Legislature can amend statutes of limitation for sexual battery to apply retroactively without running afoul of constitutional ex post facto prohibition if it does so before prosecution is barred by old statute, and legislature clearly indicates that new statute is to apply retroactively.  See also Dixon v. State, 53 So.3d 1242, (Fla Dist. Ct. App. 2011) (refusing to apply statute of limitations extension based on DNA analysis when the subsequent statute had not been enacted when the original limitations period for a sexual battery offense had already expired)

Torgerson v. State, 964 So. 2d 178, 179 (Fla. 2007)

  • In a trial for lewd or lascivious battery upon a person between 12 and 16 and sexual battery, the statute of limitations in effect at the time defendant allegedly committed the offenses were applicable. Thus, the limitations period began to run when the victim reached 16 or when the crime was reported to law enforcement agency – not when the victim turned 18 as provided in statute relied on by prosecution.

 

DNA EXCEPTION

Fla. Stat. § 775.15 Time limitations

(15) (a) For the following offenses, within one year 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 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; applies to any offense not otherwise barred from prosecution between July 1, 2004 and June 30, 2006

  • Sexual battery (§ 794.011)
  • Lewd or lascivious offense upon or in the presence of a child (§ 800.04)
  • Lewd or lascivious offense upon or in the presence of an elderly or disabled person (§ 825.1025)
  • (16) (a) For the following offenses, a prosecution 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 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; applies to offenses not otherwise barred from prosecution on or after July 1, 2006:
    • Sexual battery (§ 794.011)
    • Lewd or lascivious offense in the presence of a child (§ 800.04)
    • Lewd or lascivious offense upon or in the presence of an elderly or disabled person (§ 825.1025)
  • Certain computer transmissions related to child pornography (§ 847.0135 (5))

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