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Filing # 127199151 E-Filed 05/20/2021 12:10:36 PM
IN THE CIRCUIT COURT OF THE 15th
JUDICIAL CIRCUIT IN AND FOR PALM
BEACH COUNTY, FLORIDA
CIRCUIT CIVID DIVISION AD
CASE NO. 50-2020-CA-011425-XXXX-MB
J.L. DOE, by and through her mother,
MOTHER DOE, as parent and legal
guardian,
Plaintiff,
v.
PLACE OF HOPE, INC., a Florida not-for-
profit corporation, KIDSANCTUARY
CAMPUS, INC., a Florida not-for-profit
corporation, the STATE OF FLORIDA
DEPARTMENT OF CHILDREN AND
FAMILIES, a governmental department of
the State of Florida, and CHILDNET, INC.,
a Florida Not-for-Profit Corporation,
Defendants.
PLAINTIFF’S NOTICE OF SUPPLEMENTAL AUTHORITY IN SUPPORT OF
AMENDED OMNIBUS RESPONSE IN OPPOSITION TO
MOTIONS TO DISMISS FILED BY DEFENDANTS PLACE OF HOPE, INC.,
CHILDNET, INC., KIDSANTUARY CAMPUS, INC., JOINED IN PART BY STATE OF
FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES,
PLEASE TAKE NOTICE that Plaintiff files the attached supplemental authority in support
of Plaintiffs Amended Omnibus Response in Opposition to Motions to Dismiss which are being
heard on May 21, 2021 at 10:00 a.m.
1. Attached as Exhibit A is a true and correct copy of The Florida Senate Bill Analysis and
Impact Statement, prepared by the professional staff of the Senate Judiciary Committee
for SB 870 based on the provisions contained in the legislation on April 6, 2010.
*** FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK. 05/20/2021 12:10:36 PM ***2. Under the heading "Effect of Proposed Changes", the Analysis and Impact Statement
states the following:
This bill eliminates the civil statute of limitation in cases involving
acts that constitute sexual battery on a minor when the victim is under
the age of 16 at the time of the act. By eliminating the statute of
limitations in civil causes of action, it appears that the bill will not
only permit a victim to bring a lawsuit against the perpetrator at
any time, but also against other entities, such as the perpetrator's
employer, under the theory of respondeat superior.
Ex .A., p.7 (emphasis added)
CERTIFICATE RE: E-FILING AND E-SERVICE
I HEREBY CERTIFY that this Notice was filed electronically in compliance with Florida
Rules of Judicial Administration 2.515 and 2.516(f).
I FURTHER CERTIFY that this Notice was served electronically in compliance with
Florida Rule of Judicial Administration 2.516(b)(1)(E) to all persons on the Service List on this
on this 20 day of May, 2021.
I FURTHER CERTIFY for purposes of service of any documents after initial process that
staff.efile@epllc.com is primary and brad@epllc.com, brittany@epllc.com, seth@epllc.com,
maria@epllc.com, mcardenal@epllc.com, and iris@epllc.com are secondary.
EDWARDS POTTINGER LLC
Attorneys for Plaintiff(s)
425 North Andrews Avenue, Suite 2
Fort LAUDERDALE, FL 33301
(954)524-2820 TELEPHONE
(954)524-2822 Fax
brad@epllc.com
brittany@epllc.com
seth@epllc.com
By:/s/ Seth M. Lehrman
Bradley J. Edwards, Esq.
Florida Bar No.: 542075
Brittany N. Henderson, Esq.
Florida Bar No.: 118247
Seth M. Lehrman, Esq.
Florida Bar No.: 132896SERVICE LIST
GAEBE MULLEN ANTONELLI &
DIMATTEO
Miriam R. Merlo
420 South Dixie Highway, 3rd Floor
Coral Gables, FL 33146
Telephone: 305-667-0223
Facsimile: 305-284-9844
MMerlo@GaebeMullen.com
MGalan@GaebeMullen.com
RGalindo@GaebeMullen.com
Co-Counsel for Defendant Place of Hope, Inc.
and KidSanctuary Campus, Inc.
VERNIS & BOWLING OF PALM BEACH,
P.A.
Karen M. Nissen
884 U.S. Highway One
North Palm Beach, Florida 33408
Telephone: 561-775-9822
Facsimile: 561-775-9821
knissen@florida-law.com
cschrader@florida-law.com
pbfiling@florida-law.com
Counsel for Defendant DCF
MALLORY LAW GROUP
Earl K. Mallory
2074 West Indiantown Road, Suite 201
P.O. Box 8858
Jupiter, Florida 33468-8858
Telephone: 561-743-3708
Facsimile: 561-743-3729
ekm@mallorylawgroup.com
service@mallorylawgroup.com
Co-Counsel for Defendant Place of Hope, Inc.
and KidSanctuary Campus, Inc.
MARLOW ADLER ABRAMS
NEWMAN & LEWIS
Maritza Pefia
Renee Gomez
4000 Ponce de Leon Blvd., Suite 570
Coral Gables, FL 33146
Telephone: 305-446-0500
Facsimile: 305-446-3667
mpena@marlowadler.com
tgomez@marlowadler.com
Counsel for Defendant ChildNet, Inc.EXHIBIT “A”BILL:
The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Judiciary Committee
SB 870
INTRODUCER: Senator Aronberg and others
SUBJECT: Statutes of Limitation/Sexual Battery
DATE: April 6, 2010 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. _Cellon Cannon cI Favorable
2. Daniell Maclure JU Pre-meeting
3. JA
4,
5.
6.
I. Summary:
This bill eliminates the civil and criminal statutes of limitation in cases of sexual battery when
the victim is under the age of 16 at the time of the offense. The bill applies to all actions except
those which would have been time barred on or before the effective date of the bill.
This bill substantially amends sections 95.11 and 775.15, Florida Statutes.
Present Situation:
Statutes of Limitation in Criminal Cases
Section 775.15, F.S., sets forth time limitations for commencing criminal prosecutions,
commonly known as “statutes of limitation.”
There were no statutes of limitation at common law. Rather, statutes of limitation are a statutory
creation.
In State v. Hickman, the court stated:
Statutes of limitation are construed as being acts of grace, and as a surrendering
by the sovereign of its right to prosecute or of its right to prosecute at its
discretion, and they are considered as equivalent to acts of amnesty. Such statutes
are founded on the liberal theory that prosecutions should not be allowed to
" State v. McCloud, 67 So. 2d 242, 243 (Fla. 1953).BILL: SB 870 Page 2
ferment endlessly in the files of the government to explode only after witnesses
and proofs necessary to the protection of accused have by sheer lapse of time
passed beyond availability. They serve, not only to bar prosecutions on aged and
untrustworthy evidence, but also to cut off prosecution for crimes a reasonable
time after completion, when no further danger to society is contemplated from the
criminal activity.”
The time for prosecution of a criminal case starts to run on the day after the offense is
committed.’ An offense is deemed to have been committed when either every element of the
offense has occurred, or, if the legislative purpose is to prohibit a continuing course of conduct
plainly appears, at the time when the course of conduct or the defendant’s duplicity therein is
terminated.
Section 775.15, F.S., provides the following general time limitations for initiating a criminal
prosecution:>
a i
Capital felony, life felony, or felony resulting | There is no time limitation
in death
First-degree felony Within four years after crime is committed
Any other felony Within three years after crime is committed
First-degree misdemeanor Within two years after crime is committed
Second-degree misdemeanor Within one year after crime is committed
Florida law also deviates from the general time limitations for specific crimes. For example, for
prosecutions involving securities transaction violations (ch. 517, F.S.), Medicaid provider fraud
(s. 409.920, F.S.), insurance fraud by an employer (s. 440.105, F.S.), filing a false insurance
claim (s. 817.234, F.S.), felony abuse against elderly persons or disabled adults (s. 825.102,
F.S.), and environmental control felony violations (ch. 403, F.S.), the action must be brought
within five years after the crime was committed.°
Section 775.15, F.S., also provides separate statutes of limitation, in certain situations, for
violations of the sexual battery statute, the lewd or lascivious behavior statute, the incest statute,
or the computer pornography statute. Specifically, if a victim of one of these acts is under the age
of 18, the applicable period of limitation does not begin to run until the victim has reached the
age of 18 ae the violation is reported to a law enforcement or governmental agency, whichever
occurs first.’ Moreover, if the offense is a first- -degree felony violation of the sexual battery
statute, and the victim is under the age of 18 at the time the offense was committed, prosecution
of the offense may be commenced at any time.* For other victims of sexual battery, whether they
are under the age of 18 or not, if the offense is a first- or second-degree felony and the victim
° State v. Hickman, 189 So. 2d 254, 262 (Fla. 2d DCA 1966).
* Section 775.15(3), F.S.
“Id.
§ See s. 775.15(1) and (2), F.S.
° Section 775.15(8)-(11), F-S.
T Section 775.15(13)(a), F.S.
§ Section 775.15(13)(b), F.S.BILL: SB 870 Page 3
reports the offense within 72 hours after its commission, the prosecution may be commenced at
. 9
any time.
In addition to the time periods generally prescribed for an offense, if the offense is one of sexual
battery or lewd or lascivious acts, an offender may be prosecuted within one year after the date
on which his or her identity is established, or should have been established through the exercise
of due diligence, through the analysis of DNA evidence.!°
Similarly, an offender may be prosecuted at any time after the date on which his or her identity is
established, or should have been established through the exercise of due diligence, through the
analysis of DNA evidence if accused of the following crimes:
Aggravated battery or any felony batter;
Kidnapping or false imprisonment;
Sexual battery;
Lewd or lascivious behavior;
Burglary;
Robbery;
Carjacking; or
Aggravated child abuse.'!
eooceoeeeee
Under current law, it appears that in many situations there is no time limitation for beginning a
prosecution of sexual battery crimes where the victim is a minor.
Statutes of Limitation in Civil Cases
Section 95.031, F.S., provides that the time within which an action commences under any statute
of limitation runs from the time that the cause of action accrues. A cause of action accrues when
the last element constituting the cause of action occurs. Time limitations may be tolled under
certain circumstances.” In an action for recovery of damages based upon a theory of intentional
tort, the action must commence within four years. '?
In a case where the action is specifically based upon abuse or incest,’ the action must commence
within seven years of the victim reaching age 18, or within four years after the injured person
leaves the dependency of the abuser or of the discovery by the injured person of both the injury
and the causal relationship between the injury and the abuse, whichever occurs later.'* This time
limitation is the statutory application of the “delayed discovery doctrine.” In Hearndon v.
° Section 775.15(13)(a) and (14), F.S.
® Section 775.15(15), F.S.
"' Section 775.15(16), F.S.
” See s. 95.051, F.S.
8 Section 95.11(3)(0), F.S.
“Incest is defined in s. 826.04, F.S., as sexual intercourse with a person to whom the perpetrator is related by lineal
consanguinity, or a brother, sister, uncle, aunt, nephew, or niece. Abuse of a child is defined in ss. 39.01 and 984.03, F.S., as
any willful act or threatened act that results in any physical, mental, or sexual injury or harm that causes or is likely to cause
the child’s physical, mental, or emotional health to be significantly impaired.
* Section 95.11(7), FS.BILL: SB 870 Page 4
Graham, 767 So. 2d 1179 (Fla. 2000), the Florida Supreme Court held that the delayed discovery
doctrine applies in childhood sexual abuse or incest cases. This doctrine may be applied in other
types of tort actions as well.
The delayed discovery doctrine provides that “‘a cause of action does not accrue until the plaintiff
either knows or reasonably should know of the tortious act giving rise to the cause of action.”!®
As the court noted, it is both the majority rule and the modern trend to apply the doctrine in cases
of childhood sexual abuse followed by a temporary loss of memory.’”
The court explained in Hearndon that there is a difference between tolling a statute of limitation
and the delayed discovery doctrine. Simply, the statute of limitation begins to run from the time
when the cause of action accrues. The tolling of the limitation period interrupts the running of
the time limitation after the action has accrued. The application of the delayed discovery doctrine
recognizes a delay in the accrual of the cause of action.’
Sexual Battery
Sexual battery is generally defined as “oral, anal, or vaginal penetration by, or union with, the
sexual organ of another or the anal or vaginal penetration of another by any other object;
however, sexual battery does not include an act done for a bona fide medical purpose.”"”
It is a capital felony for a person 18 years or older to commit a sexual battery on, or in an attempt
to commit a sexual battery injures the sexual organs of, a person less than 12 years of age.”° It is
also a capital felony (or life felony) for a person who is in a position of familial or custodial
authority to a person under the age of 18 to engage in any act with that person while the person is
less than 12 years of age.”
If a person under the age of 18 commits a sexual battery on, or in an attempt to commit a sexual
battery injures the sexual organs of, a person less than 12 years of age, it is a life felony. It is also
a life felony for any person to commit a sexual battery on a person 12 years of age or older and
in the process use or threaten to use a deadly weapon or use actual physical force likely to cause
serious personal injury.””
It is a first-degree felony for a person to commit a sexual battery on a person 12 years of age or
older when:
e The victim is physically helpless to resist;
« The offender coerces the victim to submit by threatening to use force or violence likely to
cause serious personal injury on the victim;
'® Hearndon, 167 So. 2d at 1184.
'" Td. at 1186.
'8 Td. at 1184-85.
Section 794.011(1)(h), F.S.
? Section 794.011(2)(a), F.S.
*! Section 794.01 1(8)(c), F.S.
Section 794.01 1(2)(b) and (3), F.S.BILL: SB 870 Page 5
© The offender coerces the victim to submit by threatening to retaliate against the victim, or
any other person;
¢ The 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 the victim;
¢ The victim is mentally defective and the offender has reason to believe this or has actual
knowledge of this fact;
e The victim is physically incapacitated; or
e The offender is a law enforcement officer, correctional officer, or correctional probation
officer.
It is also a first-degree felony for a person who is in a position of familial or custodial authority
to a person under the age of 18 to engage in any act with that person while the person is between
the ages of 12 and 18.74 If the offender only solicits the person under the age of 18 to engage in
an act that would constitute sexual battery it is a third-degree felony.”*
Finally, a person who commits sexual battery upon a person 12 years of age or older and in the
process does not use physical force and violence likely to cause serious person injury commits a
felony of the second degree.”°
Effect of Proposed Changes:
This bill eliminates the civil statute of limitation in cases involving acts that constitute sexual
battery on a minor when the victim is under the age of 16 at the time of the act. By eliminating
the statute of limitations in civil causes of action, it appears that the bill will not only permit a
victim to bring a lawsuit against the perpetrator at any time, but also against other entities, such
as the perpetrator’s employer, under the theory of respondeat superior. 7
The statutes of limitation applicable in criminal cases for sexual battery upon a victim under the
age of 16 are also eliminated by the bill.
Finally, the bill applies to all actions except those which would have been time barred on or
before the effective date of the bill.
The bill takes effect on July 1, 2010.
Section 794.011(4), F.S.
* Section 794.011(8)(b), F.S.
* Section 794.011(8)(a), F.S.
*° Section 794.01 1(5), F.S.
?” Respondeat superior means “let the superior make answer” and is the doctrine that holds “an employer or principal liable
for the employee’s or agent’s wrongful acts committed within the scope of the employment or agency.” BLACK’S LAW
DICTIONARY 609 (2d pocket ed. 1996).BILL: SB 870 Page 6
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
Cc. Trust Funds Restrictions:
None.
D. Other Constitutional Issues:
“The purpose of statutes of limitations is to allow a plaintiff a reasonable time to realize
the nature and extent of his injuries and file a lawsuit and, after that time passes, to bar
actions and thereby relieve potential defendants of the anxiety of litigation. The
appropriate length of statutes of limitations is governed by the kinds of injuries which
particular causes of action protect and the speed at which they become apparent to the
plaintiff.”** The statute of limitations in effect at the time the crime is committed
controls.” Although it may be more difficult to prove a case after the passage of time, a
defendant is still entitled to notice and a right to be heard, so there should not be any due
process violations because of this bill.
The Legislature can extend the limitations period without violating ex post facto laws if it
does so before prosecution is barred by the old statute and clearly indicates that the new
statute is to apply to cases pending when it becomes effective.*° The bill clearly provides
that it applies only to actions that would not otherwise be time barred on or before the
effective date of the bill, so it appears that the bill will not violate the ex post facto clause
of the Florida Constitution.”
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
Although it is difficult to quantify, there may be a financial impact upon a defendant for a
civil suit that is brought because of the elimination of the time limitations by the bill.
* Gannett Co., Inc. v. Anderson, 947 So. 2d 1, 9 (Fla. Ist DCA 2006).
® State ex rel Manucy v. Wadsworth, in and for St. Johns County, 293 So. 2 345, 347 (Fla. 1974).
* See U.S. v. Richardson, 512 F.2d 105, 106 (3rd Cir. 1975).
*' FLA. CONST. art. I, s. 10.BILL: SB 870
Vi.
Vil.
Vill.
c.
Page 7
Government Sector Impact:
The Criminal Justice Impact Conference (conference), which provides the final, official
estimate of the prison bed impact of criminal legislation, met on March 17, 2010, to
consider HB 525, which is identical to this bill. According to the conference, this bill has
an insignificant impact on state prison beds.”
According to the Office of the State Courts Administrator (OSCA), the bill may increase
judicial workload due to an increased number of actions being filed. Additionally, the bill
may produce a positive fiscal impact due to the filing fees for the additional cases filed.
However, according to OSCA, the fiscal impact is likely to be minimal for both revenue
and expenditures.**
Technical Deficiencies:
None.
Related Issues:
None.
Additional Information:
A.
Committee Substitute — Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
» Office of Economic and Demographic Research, The Florida Legislature, Criminal Justice Impact Conference 2010
Legislature (Mar. 17, 2010), available at hitp://edr_state.fl.us/conferences/criminaljustice/Impact/cjimpact.htm (follow the
“2010 Conference Results” link) (last visited Apr. 2, 2010)
%3 Office of the State Courts Adm’r, Judicial Impact Statement HB 525 (Jan. 13, 2010) (on file with the Senate Committee on
Judiciary). House bill 525 is identical to SB 870.
Preview
Filing # 127199151 E-Filed 05/20/2021 12:10:36 PM IN THE CIRCUIT COURT OF THE 15th JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CIRCUIT CIVID DIVISION AD CASE NO. 50-2020-CA-011425-XXXX-MB J.L. DOE, by and through her mother, MOTHER DOE, as parent and legal guardian, Plaintiff, v. PLACE OF HOPE, INC., a Florida not-for- profit corporation, KIDSANCTUARY CAMPUS, INC., a Florida not-for-profit corporation, the STATE OF FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, a governmental department of the State of Florida, and CHILDNET, INC., a Florida Not-for-Profit Corporation, Defendants. PLAINTIFF’S NOTICE OF SUPPLEMENTAL AUTHORITY IN SUPPORT OF AMENDED OMNIBUS RESPONSE IN OPPOSITION TO MOTIONS TO DISMISS FILED BY DEFENDANTS PLACE OF HOPE, INC., CHILDNET, INC., KIDSANTUARY CAMPUS, INC., JOINED IN PART BY STATE OF FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, PLEASE TAKE NOTICE that Plaintiff files the attached supplemental authority in support of Plaintiffs Amended Omnibus Response in Opposition to Motions to Dismiss which are being heard on May 21, 2021 at 10:00 a.m. 1. Attached as Exhibit A is a true and correct copy of The Florida Senate Bill Analysis and Impact Statement, prepared by the professional staff of the Senate Judiciary Committee for SB 870 based on the provisions contained in the legislation on April 6, 2010. *** FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK. 05/20/2021 12:10:36 PM ***2. Under the heading "Effect of Proposed Changes", the Analysis and Impact Statement states the following: This bill eliminates the civil statute of limitation in cases involving acts that constitute sexual battery on a minor when the victim is under the age of 16 at the time of the act. By eliminating the statute of limitations in civil causes of action, it appears that the bill will not only permit a victim to bring a lawsuit against the perpetrator at any time, but also against other entities, such as the perpetrator's employer, under the theory of respondeat superior. Ex .A., p.7 (emphasis added) CERTIFICATE RE: E-FILING AND E-SERVICE I HEREBY CERTIFY that this Notice was filed electronically in compliance with Florida Rules of Judicial Administration 2.515 and 2.516(f). I FURTHER CERTIFY that this Notice was served electronically in compliance with Florida Rule of Judicial Administration 2.516(b)(1)(E) to all persons on the Service List on this on this 20 day of May, 2021. I FURTHER CERTIFY for purposes of service of any documents after initial process that staff.efile@epllc.com is primary and brad@epllc.com, brittany@epllc.com, seth@epllc.com, maria@epllc.com, mcardenal@epllc.com, and iris@epllc.com are secondary. EDWARDS POTTINGER LLC Attorneys for Plaintiff(s) 425 North Andrews Avenue, Suite 2 Fort LAUDERDALE, FL 33301 (954)524-2820 TELEPHONE (954)524-2822 Fax brad@epllc.com brittany@epllc.com seth@epllc.com By:/s/ Seth M. Lehrman Bradley J. Edwards, Esq. Florida Bar No.: 542075 Brittany N. Henderson, Esq. Florida Bar No.: 118247 Seth M. Lehrman, Esq. Florida Bar No.: 132896SERVICE LIST GAEBE MULLEN ANTONELLI & DIMATTEO Miriam R. Merlo 420 South Dixie Highway, 3rd Floor Coral Gables, FL 33146 Telephone: 305-667-0223 Facsimile: 305-284-9844 MMerlo@GaebeMullen.com MGalan@GaebeMullen.com RGalindo@GaebeMullen.com Co-Counsel for Defendant Place of Hope, Inc. and KidSanctuary Campus, Inc. VERNIS & BOWLING OF PALM BEACH, P.A. Karen M. Nissen 884 U.S. Highway One North Palm Beach, Florida 33408 Telephone: 561-775-9822 Facsimile: 561-775-9821 knissen@florida-law.com cschrader@florida-law.com pbfiling@florida-law.com Counsel for Defendant DCF MALLORY LAW GROUP Earl K. Mallory 2074 West Indiantown Road, Suite 201 P.O. Box 8858 Jupiter, Florida 33468-8858 Telephone: 561-743-3708 Facsimile: 561-743-3729 ekm@mallorylawgroup.com service@mallorylawgroup.com Co-Counsel for Defendant Place of Hope, Inc. and KidSanctuary Campus, Inc. MARLOW ADLER ABRAMS NEWMAN & LEWIS Maritza Pefia Renee Gomez 4000 Ponce de Leon Blvd., Suite 570 Coral Gables, FL 33146 Telephone: 305-446-0500 Facsimile: 305-446-3667 mpena@marlowadler.com tgomez@marlowadler.com Counsel for Defendant ChildNet, Inc.EXHIBIT “A”BILL: The Florida Senate BILL ANALYSIS AND FISCAL IMPACT STATEMENT (This document is based on the provisions contained in the legislation as of the latest date listed below.) Prepared By: The Professional Staff of the Judiciary Committee SB 870 INTRODUCER: Senator Aronberg and others SUBJECT: Statutes of Limitation/Sexual Battery DATE: April 6, 2010 REVISED: ANALYST STAFF DIRECTOR REFERENCE ACTION 1. _Cellon Cannon cI Favorable 2. Daniell Maclure JU Pre-meeting 3. JA 4, 5. 6. I. Summary: This bill eliminates the civil and criminal statutes of limitation in cases of sexual battery when the victim is under the age of 16 at the time of the offense. The bill applies to all actions except those which would have been time barred on or before the effective date of the bill. This bill substantially amends sections 95.11 and 775.15, Florida Statutes. Present Situation: Statutes of Limitation in Criminal Cases Section 775.15, F.S., sets forth time limitations for commencing criminal prosecutions, commonly known as “statutes of limitation.” There were no statutes of limitation at common law. Rather, statutes of limitation are a statutory creation. In State v. Hickman, the court stated: Statutes of limitation are construed as being acts of grace, and as a surrendering by the sovereign of its right to prosecute or of its right to prosecute at its discretion, and they are considered as equivalent to acts of amnesty. Such statutes are founded on the liberal theory that prosecutions should not be allowed to " State v. McCloud, 67 So. 2d 242, 243 (Fla. 1953).BILL: SB 870 Page 2 ferment endlessly in the files of the government to explode only after witnesses and proofs necessary to the protection of accused have by sheer lapse of time passed beyond availability. They serve, not only to bar prosecutions on aged and untrustworthy evidence, but also to cut off prosecution for crimes a reasonable time after completion, when no further danger to society is contemplated from the criminal activity.” The time for prosecution of a criminal case starts to run on the day after the offense is committed.’ An offense is deemed to have been committed when either every element of the offense has occurred, or, if the legislative purpose is to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the defendant’s duplicity therein is terminated. Section 775.15, F.S., provides the following general time limitations for initiating a criminal prosecution:> a i Capital felony, life felony, or felony resulting | There is no time limitation in death First-degree felony Within four years after crime is committed Any other felony Within three years after crime is committed First-degree misdemeanor Within two years after crime is committed Second-degree misdemeanor Within one year after crime is committed Florida law also deviates from the general time limitations for specific crimes. For example, for prosecutions involving securities transaction violations (ch. 517, F.S.), Medicaid provider fraud (s. 409.920, F.S.), insurance fraud by an employer (s. 440.105, F.S.), filing a false insurance claim (s. 817.234, F.S.), felony abuse against elderly persons or disabled adults (s. 825.102, F.S.), and environmental control felony violations (ch. 403, F.S.), the action must be brought within five years after the crime was committed.° Section 775.15, F.S., also provides separate statutes of limitation, in certain situations, for violations of the sexual battery statute, the lewd or lascivious behavior statute, the incest statute, or the computer pornography statute. Specifically, if a victim of one of these acts is under the age of 18, the applicable period of limitation does not begin to run until the victim has reached the age of 18 ae the violation is reported to a law enforcement or governmental agency, whichever occurs first.’ Moreover, if the offense is a first- -degree felony violation of the sexual battery statute, and the victim is under the age of 18 at the time the offense was committed, prosecution of the offense may be commenced at any time.* For other victims of sexual battery, whether they are under the age of 18 or not, if the offense is a first- or second-degree felony and the victim ° State v. Hickman, 189 So. 2d 254, 262 (Fla. 2d DCA 1966). * Section 775.15(3), F.S. “Id. § See s. 775.15(1) and (2), F.S. ° Section 775.15(8)-(11), F-S. T Section 775.15(13)(a), F.S. § Section 775.15(13)(b), F.S.BILL: SB 870 Page 3 reports the offense within 72 hours after its commission, the prosecution may be commenced at . 9 any time. In addition to the time periods generally prescribed for an offense, if the offense is one of sexual battery or lewd or lascivious acts, an offender may be prosecuted within one year after the date on which his or her identity is established, or should have been established through the exercise of due diligence, through the analysis of DNA evidence.!° Similarly, an offender may be prosecuted at any time after the date on which his or her identity is established, or should have been established through the exercise of due diligence, through the analysis of DNA evidence if accused of the following crimes: Aggravated battery or any felony batter; Kidnapping or false imprisonment; Sexual battery; Lewd or lascivious behavior; Burglary; Robbery; Carjacking; or Aggravated child abuse.'! eooceoeeeee Under current law, it appears that in many situations there is no time limitation for beginning a prosecution of sexual battery crimes where the victim is a minor. Statutes of Limitation in Civil Cases Section 95.031, F.S., provides that the time within which an action commences under any statute of limitation runs from the time that the cause of action accrues. A cause of action accrues when the last element constituting the cause of action occurs. Time limitations may be tolled under certain circumstances.” In an action for recovery of damages based upon a theory of intentional tort, the action must commence within four years. '? In a case where the action is specifically based upon abuse or incest,’ the action must commence within seven years of the victim reaching age 18, or within four years after the injured person leaves the dependency of the abuser or of the discovery by the injured person of both the injury and the causal relationship between the injury and the abuse, whichever occurs later.'* This time limitation is the statutory application of the “delayed discovery doctrine.” In Hearndon v. ° Section 775.15(13)(a) and (14), F.S. ® Section 775.15(15), F.S. "' Section 775.15(16), F.S. ” See s. 95.051, F.S. 8 Section 95.11(3)(0), F.S. “Incest is defined in s. 826.04, F.S., as sexual intercourse with a person to whom the perpetrator is related by lineal consanguinity, or a brother, sister, uncle, aunt, nephew, or niece. Abuse of a child is defined in ss. 39.01 and 984.03, F.S., as any willful act or threatened act that results in any physical, mental, or sexual injury or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired. * Section 95.11(7), FS.BILL: SB 870 Page 4 Graham, 767 So. 2d 1179 (Fla. 2000), the Florida Supreme Court held that the delayed discovery doctrine applies in childhood sexual abuse or incest cases. This doctrine may be applied in other types of tort actions as well. The delayed discovery doctrine provides that “‘a cause of action does not accrue until the plaintiff either knows or reasonably should know of the tortious act giving rise to the cause of action.”!® As the court noted, it is both the majority rule and the modern trend to apply the doctrine in cases of childhood sexual abuse followed by a temporary loss of memory.’” The court explained in Hearndon that there is a difference between tolling a statute of limitation and the delayed discovery doctrine. Simply, the statute of limitation begins to run from the time when the cause of action accrues. The tolling of the limitation period interrupts the running of the time limitation after the action has accrued. The application of the delayed discovery doctrine recognizes a delay in the accrual of the cause of action.’ Sexual Battery Sexual battery is generally defined as “oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose.”"” It is a capital felony for a person 18 years or older to commit a sexual battery on, or in an attempt to commit a sexual battery injures the sexual organs of, a person less than 12 years of age.”° It is also a capital felony (or life felony) for a person who is in a position of familial or custodial authority to a person under the age of 18 to engage in any act with that person while the person is less than 12 years of age.” If a person under the age of 18 commits a sexual battery on, or in an attempt to commit a sexual battery injures the sexual organs of, a person less than 12 years of age, it is a life felony. It is also a life felony for any person to commit a sexual battery on a person 12 years of age or older and in the process use or threaten to use a deadly weapon or use actual physical force likely to cause serious personal injury.”” It is a first-degree felony for a person to commit a sexual battery on a person 12 years of age or older when: e The victim is physically helpless to resist; « The offender coerces the victim to submit by threatening to use force or violence likely to cause serious personal injury on the victim; '® Hearndon, 167 So. 2d at 1184. '" Td. at 1186. '8 Td. at 1184-85. Section 794.011(1)(h), F.S. ? Section 794.011(2)(a), F.S. *! Section 794.01 1(8)(c), F.S. Section 794.01 1(2)(b) and (3), F.S.BILL: SB 870 Page 5 © The offender coerces the victim to submit by threatening to retaliate against the victim, or any other person; ¢ The 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 the victim; ¢ The victim is mentally defective and the offender has reason to believe this or has actual knowledge of this fact; e The victim is physically incapacitated; or e The offender is a law enforcement officer, correctional officer, or correctional probation officer. It is also a first-degree felony for a person who is in a position of familial or custodial authority to a person under the age of 18 to engage in any act with that person while the person is between the ages of 12 and 18.74 If the offender only solicits the person under the age of 18 to engage in an act that would constitute sexual battery it is a third-degree felony.”* Finally, a person who commits sexual battery upon a person 12 years of age or older and in the process does not use physical force and violence likely to cause serious person injury commits a felony of the second degree.”° Effect of Proposed Changes: This bill eliminates the civil statute of limitation in cases involving acts that constitute sexual battery on a minor when the victim is under the age of 16 at the time of the act. By eliminating the statute of limitations in civil causes of action, it appears that the bill will not only permit a victim to bring a lawsuit against the perpetrator at any time, but also against other entities, such as the perpetrator’s employer, under the theory of respondeat superior. 7 The statutes of limitation applicable in criminal cases for sexual battery upon a victim under the age of 16 are also eliminated by the bill. Finally, the bill applies to all actions except those which would have been time barred on or before the effective date of the bill. The bill takes effect on July 1, 2010. Section 794.011(4), F.S. * Section 794.011(8)(b), F.S. * Section 794.011(8)(a), F.S. *° Section 794.01 1(5), F.S. ?” Respondeat superior means “let the superior make answer” and is the doctrine that holds “an employer or principal liable for the employee’s or agent’s wrongful acts committed within the scope of the employment or agency.” BLACK’S LAW DICTIONARY 609 (2d pocket ed. 1996).BILL: SB 870 Page 6 IV. Constitutional Issues: A. Municipality/County Mandates Restrictions: None. B. Public Records/Open Meetings Issues: None. Cc. Trust Funds Restrictions: None. D. Other Constitutional Issues: “The purpose of statutes of limitations is to allow a plaintiff a reasonable time to realize the nature and extent of his injuries and file a lawsuit and, after that time passes, to bar actions and thereby relieve potential defendants of the anxiety of litigation. The appropriate length of statutes of limitations is governed by the kinds of injuries which particular causes of action protect and the speed at which they become apparent to the plaintiff.”** The statute of limitations in effect at the time the crime is committed controls.” Although it may be more difficult to prove a case after the passage of time, a defendant is still entitled to notice and a right to be heard, so there should not be any due process violations because of this bill. The Legislature can extend the limitations period without violating ex post facto laws if it does so before prosecution is barred by the old statute and clearly indicates that the new statute is to apply to cases pending when it becomes effective.*° The bill clearly provides that it applies only to actions that would not otherwise be time barred on or before the effective date of the bill, so it appears that the bill will not violate the ex post facto clause of the Florida Constitution.” V. Fiscal Impact Statement: A. Tax/Fee Issues: None. B. Private Sector Impact: Although it is difficult to quantify, there may be a financial impact upon a defendant for a civil suit that is brought because of the elimination of the time limitations by the bill. * Gannett Co., Inc. v. Anderson, 947 So. 2d 1, 9 (Fla. Ist DCA 2006). ® State ex rel Manucy v. Wadsworth, in and for St. Johns County, 293 So. 2 345, 347 (Fla. 1974). * See U.S. v. Richardson, 512 F.2d 105, 106 (3rd Cir. 1975). *' FLA. CONST. art. I, s. 10.BILL: SB 870 Vi. Vil. Vill. c. Page 7 Government Sector Impact: The Criminal Justice Impact Conference (conference), which provides the final, official estimate of the prison bed impact of criminal legislation, met on March 17, 2010, to consider HB 525, which is identical to this bill. According to the conference, this bill has an insignificant impact on state prison beds.” According to the Office of the State Courts Administrator (OSCA), the bill may increase judicial workload due to an increased number of actions being filed. Additionally, the bill may produce a positive fiscal impact due to the filing fees for the additional cases filed. However, according to OSCA, the fiscal impact is likely to be minimal for both revenue and expenditures.** Technical Deficiencies: None. Related Issues: None. Additional Information: A. Committee Substitute — Statement of Substantial Changes: (Summarizing differences between the Committee Substitute and the prior version of the bill.) None. Amendments: None. This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate. » Office of Economic and Demographic Research, The Florida Legislature, Criminal Justice Impact Conference 2010 Legislature (Mar. 17, 2010), available at hitp://edr_state.fl.us/conferences/criminaljustice/Impact/cjimpact.htm (follow the “2010 Conference Results” link) (last visited Apr. 2, 2010) %3 Office of the State Courts Adm’r, Judicial Impact Statement HB 525 (Jan. 13, 2010) (on file with the Senate Committee on Judiciary). House bill 525 is identical to SB 870.