Supreme Court of Florida

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No. SC17-576

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STATE OF FLORIDA,

Petitioner,

vs.

EARVIN SMITH,

Respondent.

[April 12, 2018]

LAWSON, J.

This case is before the Court for review of the decision of the Third District 

Court of Appeal in Smith v. State, 211 So. 3d 176 (Fla. 3d DCA 2016), which 

passed upon the following question and certified it to this Court as a question of 

great public importance:

Must a defendant[] who claims that the offense as charged in the 

information is barred by the statute of limitations[] raise the issue 

in the trial court in order to preserve the issue for direct appeal?

Id. at 187. We have jurisdiction, art. V, § 3(b)(4), Fla. Const., and answer the 

certified question in the affirmative.
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BACKGROUND

In 2011, Earvin Smith was arrested after DNA evidence linked him to a 

home invasion and sexual battery that occurred over twenty years prior. Following 

a jury trial, Smith’s jury found him guilty of (1) burglary of a dwelling with the 

intent to commit sexual battery or robbery and (2) sexual battery, and further found

that Smith possessed a firearm during the commission of these offenses. Smith 

was adjudicated guilty and sentenced to concurrent terms of twenty years’ 

imprisonment with a three-year mandatory minimum. 

Smith appealed to the Third District and argued for the first time that the 

prosecution for armed burglary, a first-degree felony punishable by life, was 

subject to the four-year limitations period provided in section 775.15(2)(a), Florida 

Statutes (Supp. 1990).1 Smith, 211 So. 3d at 179. Smith claimed that this 

conviction and sentence had to be reversed as a matter of fundamental error. Id. 

The Third District held that it was compelled to agree, but certified to us as a 

question of great public importance whether a claim that a conviction for a charged 

 

1. Although section 775.15 now contains a tolling provision for burglary 

cases where the defendant’s identity is discovered through a DNA match, that 

provision is inapplicable to this case because the prosecution was already timebarred before the effective date of the amendment. Smith, 211 So. 3d at 192 n.21 

(Emas, J., concurring) (citing ch. 2006-266, § 1, Laws of Fla., codified at 

§ 775.15(16)(a), Fla. Stat. (2006); Lawson v. State, 51 So. 3d 1287 (Fla. 2d DCA 

2011); Bryson v. State, 42 So. 3d 852 (Fla. 1st DCA 2010)). 
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offense is barred by the statute of limitations must be raised in the trial court to 

preserve the issue for direct appeal. Id.

ANALYSIS

Florida follows “the general rule” that an “[e]rror[] that ha[s] not been 

preserved by contemporaneous objection can be considered on direct appeal only if 

the error is fundamental.” Jackson v. State, 983 So. 2d 562, 568 (Fla. 2008). 

Whether an error is fundamental—meaning that the error “goes to the foundation 

of the case or goes to the merits of the cause of action,” Hopkins v. State, 632 So. 

2d 1372, 1374 (Fla. 1994) (quoting Sanford v. Rubin, 237 So. 2d 134, 137 (Fla. 

1970))—is a question of law we review de novo. See Woods v. State, 95 So. 3d 

925, 927 (Fla. 5th DCA 2012) (“Review of a claim of fundamental error is de 

novo.”); cf. also Wong v. State, 212 So. 3d 351, 355-56 (Fla. 2017) (“Where the 

facts are undisputed, whether an issue is properly preserved for appellate review is 

a question of law that this Court reviews de novo.”).

We have never expressly considered preservation of a statute-of-limitations 

defense in the context presented by the certified question. However, the United 

States Supreme Court has cogently explained that

a statute-of-limitations defense becomes part of a case only if the 

defendant puts the defense in issue. When a defendant presses a 

limitations defense, the Government then bears the burden of 

establishing compliance with the statute of limitations by presenting 

evidence that the crime was committed within the limitations period 

or by establishing an exception to the limitations period. When a 
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defendant fails to press a limitations defense, the defense does not 

become part of the case and the Government does not otherwise have 

the burden of proving that it filed a timely [charging document]. 

When a defendant does not press the defense, then, there is no error 

for an appellate court to correct—and certainly no plain error.

Musacchio v. United States, 136 S. Ct. 709, 718 (2016).

Although the Supreme Court reached this holding based on the language and 

history of the federal statute of limitations, the language of our statute does not 

command a different approach. Timely commencement of prosecution is 

mandatory under our statute (as it is under the federal statute), but the statute does 

not make timeliness a nonwaivable issue of jurisdiction. See generally § 775.15, 

Fla. Stat. (2017); § 775.15, Fla. Stat. (Supp. 1990). While we have called the 

timeliness of the prosecution a “jurisdictional fact,” the Third District correctly 

observed that we do not consider it jurisdictional “in the sense of depriving the trial 

court of subject-matter jurisdiction.” Smith, 211 So. 3d at 182. 

Moreover, the Supreme Court’s approach is consistent with the defensive 

manner in which we have viewed our statute in the past2and with our recent 

 

2. Sochor v. State, 619 So. 2d 285, 290 (Fla. 1993) (noting that the statute of 

limitations “is a defensive matter that must be raised at trial”); State v. Sturdivan, 

419 So. 2d 300, 302 (Fla. 1982) (recognizing that “a defendant may by his actions 

waive” the statute-of-limitations defense); State v. King, 282 So. 2d 162, 164 (Fla. 

1973) (“[A] most significant burden of proof is placed upon the State in order to 

proceed once the jurisdiction of the Court is questioned through the raising of the 

Statute of Limitations.”).
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precedent on fundamental error in the comparable context of the State’s failure to 

prove a substantive element of an offense. We have explained that compliance 

with the statute of limitations is a “factual matter which the State must prove just 

as it must prove all other elements of the offense.” Crews v. State, 183 So. 3d 329, 

331 (Fla. 2015). Even failure to prove an element of an offense, however, is not 

fundamental error in most cases. F.B. v. State, 852 So. 2d 226, 229-30 (Fla. 2003). 

Indeed, we recognize only two circumstances in which a defendant is not required 

to preserve an objection to the sufficiency of the State’s case: “The first exception 

is based on the longstanding appellate rule under which, in death penalty cases, this 

Court is required to review the sufficiency of the evidence to support the 

conviction,” and the second exception applies where the State fails to prove that “a 

crime was committed at all.” Id. at 230; see also Monroe v. State, 191 So. 3d 395, 

401-02 (Fla. 2016).

If failure to prove a substantive element of an offense is not fundamental 

error, we see no reason why failure to prove compliance with the statute of 

limitations should be.

3

 Accordingly, we adopt the Supreme Court’s well-reasoned 

 

3. We also note that even where, as here, the record establishes not only 

failure to prove compliance, but a clear violation of the statute, the possibilities that 

failure to raise the statute was a tactical decision and that the State could have 

remedied the violation upon notice of the error further underscore that the error 

should not be deemed fundamental. Cf. Gonzalez v. State, 136 So. 3d 1125, 1148 

(Fla. 2014) (observing that the possibility of “strategic gamesmanship” is a basis 

for declining to find fundamental error). As Judge Emas explained below, Smith’s
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approach and hold that the argument that conviction for a charged offense is barred 

by the statute of limitations must be raised in the trial court to preserve the issue 

for direct appeal. Of course, our holding does not preclude a defendant prejudiced 

by trial counsel’s nonstrategic failure to raise a statute-of-limitations defense from 

asserting a claim of ineffective assistance of counsel. See Strickland v. 

Washington, 466 U.S. 668, 687 (1984).

CONCLUSION

For the foregoing reasons, we answer the certified question in the 

affirmative and hold that a defendant must raise a claim that conviction of a 

charged offense violates the statute of limitations in the trial court to preserve the 

issue for direct appeal. Accordingly, we quash the portion of the Third District’s 

opinion reversing Smith’s conviction and sentence for armed burglary and remand 

the case to the Third District for reinstatement of that conviction and sentence.

It is so ordered.

LABARGA, C.J., and PARIENTE, QUINCE, CANADY, and POLSTON, JJ., 

concur.

 

case illustrates that failure to raise a statute-of-limitations issue can sometimes be 

to the defendant’s strategic advantage because if Smith had “filed a motion to 

dismiss this charge as barred by the statute of limitations, the State could validly 

have amended the information to charge the very same burglary, but as 

a life felony (a crime for which there is no statute of limitations, see section 

775.15(1)), Florida Statutes (1990)) given that Smith had committed a sexual 

battery during the burglary (the other offense charged in the information, which the 

jury found Smith guilty of).” Smith, 211 So. 3d at 202-03 (Emas, J., concurring). 
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PARIENTE, J., concurs with an opinion, in which QUINCE, J., concurs.

LEWIS, J., concurs in result.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, 

IF FILED, DETERMINED.

PARIENTE, J., concurring.

I agree with the majority’s answering the certified question in the 

affirmative, holding that claims that the statute of limitations has run should be 

raised first in the trial court and not on direct appeal as fundamental error. I write 

separately to expand on the majority’s statement that “our holding does not 

preclude a defendant prejudiced by trial counsel’s nonstrategic failure to raise a 

statute-of-limitations defense from asserting a claim of ineffective assistance of 

counsel.” Majority op. at 6; see majority op. at 5-6 n.3. If ineffective assistance of 

counsel appears on the face of the record, then an appellate court can consider and 

remedy the error. See Sims v. State, 998 So. 2d 494, 502 (Fla. 2008); Mansfield v. 

State, 758 So. 2d 636, 642 (Fla. 2000). Having this alternative is critical, 

especially in cases where all crimes for which the defendant could be convicted are 

barred by the statute of limitations. 

In this case, the defendant was convicted of both armed sexual battery, for 

which the statute of limitations had not expired, and armed burglary, for which the 

statute of limitations had expired. Smith v. State, 211 So. 3d 176, 177-79 (Fla. 3d 

DCA 2016). It does not appear that Smith’s counsel had a strategic reason for not 
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raising a statute-of-limitations defense for the armed burglary charge. Id. at 178. 

In fact, Smith’s counsel successfully sought dismissal on “three counts of 

aggravated assault with a firearm” by raising the statute of limitations, and when 

asked by the trial court about the remaining charges, counsel affirmatively advised 

the court that the remaining charges were life felonies. Id. Therefore, unless 

counsel was affirmatively misleading the trial court, both counsel and the state 

were unaware that the crime charged was not a life felony. Id. at 178-79 & n.6.

While there does not appear to be a strategic reason in this case, the question 

is prejudice; that is, whether the deficiency undermines confidence in the outcome 

of Smith’s trial. See Wheeler v. State, 124 So. 3d 865, 873 (Fla. 2013); see also 

Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). As Judge Emas 

observes, had defense counsel raised a statute-of-limitations defense on Smith’s 

remaining charges, “the State could validly have amended the information to 

charge the very same burglary, but as a life felony (a crime for which there is no 

statute of limitations).” Smith, 211 So. 3d at 202 (Emas, J., concurring). In that 

instance, Smith would have stood convicted and presumably received the same 

sentence—i.e., 20 years’ imprisonment to run concurrent with a sentence of 20

years’ imprisonment for the sexual battery charge. Thus, even if Smith’s counsel 

had raised this defense, the question of prejudice remains. 
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CONCLUSION

For the reasons explained above, I agree with the majority’s answering the 

certified question in the affirmative and concluding that the preferable avenue for 

addressing an unpreserved statute-of-limitations defense is through a claim of 

ineffective assistance of counsel, unless deficiency and prejudice are apparent on 

the face of the record.

QUINCE, J., concurs.

Application for Review of the Decision of the District Court of Appeal – Certified 

Great Public Importance 

Third District - Case No. 3D14-1635

(Dade County)

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Jeffrey R. Geldens, 

Assistant Attorney General, Miami, Florida, 

for Petitioner

Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public 

Defender, Eleventh Judicial Circuit, Miami, Florida, 

for Respondent