FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D23-3126

LT Case No. 2021-MM-045048-A

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ADRIENNE NICOLE WHITTAMORE,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

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Petition for Writ of Prohibition.

A Case of Original Jurisdiction.

Blaise Trettis, Public Defender, Viera, and Raylene HulsStrickler Coe, Assistant Public Defender, Titusville, for 

Petitioner.

Ashley Moody, Attorney General, Tallahassee, and Marissa V. 

Giles, Assistant Attorney General, Daytona Beach, for 

Respondent.

December 21, 2023

SOUD, J.

Petitioner Adrienne Whittamore seeks a writ from this Court 

prohibiting her prosecution below, arguing that the State failed to 

commence the prosecution within the time established by the 

statute of limitations in section 775.15, Florida Statutes (2020). 
2

We have jurisdiction. See Art. V, § 4(b)(3), Fla. Const.; Fla. R. App. 

P. 9.030(b)(3); Fla. R. App. P. 9.100. The petition is denied. 

I.

Whittamore stands charged below with one count of Soliciting 

Lewdness (First Offense), a second-degree misdemeanor. The 

information, filed September 15, 2021, alleges she committed the 

offense on November 10, 2020, in Brevard County, Florida.

On September 17, 2021, a summons was issued to Whittamore

at her last known address on Catalina Street, where she lived at 

the time of the charged offense. The summons was returned 

unserved on October 23, 2021, and marked “did not respond to 

mailer.” Thereafter, a capias was issued for Whittamore’s arrest 

on November 5, 2021. The capias shows her last known address as 

“General Delivery” in Titusville, which is the same as reflected on

her driver’s license. The capias was not executed until February 

23, 2022, in Brevard County, Florida, where Whittamore asserts 

she has lived continuously since 2019.

Whittamore filed her motion to dismiss, asserting that the 

one-year statute of limitations expired on November 11, 2021, 

before the capias was executed. The State argued that the statute 

of limitations was tolled until the time of Whittamore’s arrest 

because she had no reasonably ascertainable place of abode or 

work within the state, as contemplated by section 775.15(5), 

Florida Statutes. 

During hearing on the motion, evidence established that 

Whittamore was unemployed and had lived at no fewer than three

locations since November 10, 2020, though timeframes provided 

were vague and uncertain because—as Whittamore testified—

“[she] can’t just remember it off the top of [her] head” where she 

had lived “for every time period.”

The trial court denied the motion, concluding the statute of 

limitations was tolled until Whittamore was arrested because 

“[t]he Defendant's itinerant lifestyle and lack of employment 

prevents her from having a reasonably ascertainable place of 

abode or work from the date of the alleged crime through the date 

of the arrest and possibly longer.” This petition followed.
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II.

Whittamore argues the capias was not executed without 

unreasonable delay as required by section 775.14(4)(b) because

there is no evidence the State was diligent in its efforts to locate 

her. Since the capias was executed more than one year after the

charged offense, she concludes the prosecution is barred because it

was not commenced within the statute of limitations. 

Whittamore’s argument fails.

A.

A petition for writ of prohibition is the proper vehicle for 

challenging a trial court’s denial of a motion to dismiss based on 

the expiration of the statute of limitations. See Carcaise v. Durden, 

382 So. 2d 1236 (Fla. 5th DCA 1980). However, prohibition is an 

extraordinary remedy employed only when necessary to “prevent 

courts from acting where there is no jurisdiction to act(rather than 

to prevent an erroneous exercise of jurisdiction).” Sutton v. State, 

975 So. 2d 1073, 1076 (Fla. 2008) (citation omitted). As such, the

discretionary writ is narrow and to be issued by Florida courts 

“with great caution” and only in emergencies “where there is no 

other ‘appropriate and adequate legal remedy.’” Fetzer v. State, 360 

So. 3d 1173, 1174 (Fla. 5th DCA 2023), review denied, No. SC2023-

0692, 2023 WL 7325389 (Fla. Nov. 7, 2023) (first quoting English 

v. McCrary, 348 So. 2d 293, 296 (Fla. 1977); and then quoting 

Sutton, 975 So. 2d at 1076).1

1 “[Prohibition] is preventive and not corrective in that it 

commands the one to whom it is directed not to do the thing which 

the supervisory court is informed the lower tribunal is about to do. 

Its purpose is to prevent the doing of something, not to compel the 

undoing of something already done.” English, 348 So. 2d at 296–

97; see also State v. Jackson, 306 So. 3d 936, 945 (Fla. 2020) (citing 

English). Prohibition “was never designed to prevent the erroneous 

exercise of an existing jurisdiction, or to be used as a substitute for 

a writ of error or appeal.” Fetzer, 360 So. 3d at 1175 (quoting State 

ex rel. Cacciatore v. Drumright, 156 So. 721, 723 (Fla. 1934)).
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B.

As Whittamore has raised the statute of limitations as

grounds for dismissal of charges, the State has a “significant 

burden” to prove the prosecution is not barred. Robinson v. State, 

205 So. 3d 584, 590 (Fla. 2016) (citing State v. King, 282 So. 2d 162, 

164 (Fla. 1973)).

1.

Generally, when calculating the statute of limitations, “[t]ime 

starts to run on the day after the offense is committed.” § 775.15(3), 

Fla. Stat. Whittamore is charged with Soliciting Lewdness (First 

Offense) on November 10, 2020. Prosecution for this charged

second-degree misdemeanor must be commenced within one year

of commission of the crime. See § 775.15(2)(d), Fla. Stat.

When, as here, an accused has not been either arrested or 

served with a summons at the time of the offense, the prosecution 

is deemed to have commenced “when either an indictment or 

information is filed, provided the capias, summons, or other 

process issued on such indictment or information is executed 

without unreasonable delay.” § 775.15(4)(b), Fla. Stat.2 In 

evaluating whether a delay in execution of the capias or summons 

is reasonable, “inability to locate the defendant after diligent 

search or the defendant’s absence from the state shall be 

considered.” Id. However, and importantly, “[t]he 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.” § 775.15(5), 

Fla. Stat. 

In this case, even though the information was filed prior to the 

expiration of the one-year statute of limitations, the capias was not 

executed until February 2022, some fifteen months after the 

charged offense. Therefore, Whittamore posits, the case must be 

dismissed because the State failed to meet its burden of 

2 When an individual has been previously arrested or served 

with a summons for a crime, prosecution is commenced by the 

filing of the indictment or information. § 775.15(4)(a), Fla. Stat.
5

establishing the capias was executed without unreasonable 

delay—i.e., the State failed to show that it conducted a diligent 

search to locate her and execute the capias before November 11, 

2021.

Whittamore’s argument is unavailing because, while sections 

775.15(4)(b) and 775.15(5) address similar matters related to the 

State’s failure to execute the capias upon Whittamore before 

November 11, 2021, each subsection operates independently from 

the other. See State v. Picklesimer, 606 So. 2d 473, 475 (Fla. 4th 

DCA 1992). Section 775.15(4)(b) allows the state to “relate back” 

the date of service of the summons or capias to the date the 

information was filed if such was executed without unreasonable 

delay. Id. When a delay in the service of the summons or capias 

occurs because of the absence of an accused or an inability to locate 

an accused, a delay in execution is reasonable when the State 

conducts a diligent search to locate the defendant. See Walker v. 

State, 543 So. 2d 353, 355 (Fla. 5th DCA 1989) (“Since this capias 

was executed after the three-year limitation period had expired, 

the state had the burden of proving that it had been diligent in its 

efforts to execute the capias in order to establish that the 

prosecution was timely.”).

On the other hand, section 775.15(5) provides that the statute 

of limitations is tolled when an individual is either “continuously 

absent from the state or has no reasonably ascertainable place of 

abode or work within the state.” § 775.15(5), Fla. Stat. Different 

than the relation back allowed by section 775.15(4)(b), section 

775.15(5) provides that the statute is tolled—that the statute does 

not begin to run—when a defendant is continuously absent from 

the state or has no reasonably ascertainable place of abode or work

in the state. Simply stated, section 775.15(5) allows for the delay 

of the commencement of prosecution involving a defendant with 

such a status. 

The State does not suggest Whittamore was continuously

absent from the State. Rather, the State asserts the one-year 

statute of limitations was tolled because Whittamore had “no 
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reasonably ascertainable place of abode or work in the state.”3 See

§ 775.15(5), Fla. Stat. Two categories of defendants are 

contemplated by this language in section 775.15(5): (1) a defendant 

who, in fact, has no fixed place of abode or employment because he

or she moves about from place to place on a continual basis, and 

(2) a defendant whose circumstances are such that his or her place 

of abode or employment could not reasonably be ascertained from

obvious sources of information. See generally Cunnell v. State, 920 

So. 2d 810, 813 (Fla. 2d DCA 2006).

In this case sub judice, Whittamore had no reasonably 

ascertainable place of abode as contemplated by section 775.15(5).

The State initially endeavored to serve a summons upon 

Whittamore at her last known address on Catalina Street in 

Titusville. The summons was returned unserved. Thereafter, a 

capias was issued for Whittamore that identified her address as 

“General Delivery” in Titusville, which is the same address as 

reflected on her Florida driver’s license. Further, the State 

established through Whittamore’s testimony that she resided at no 

fewer than three locations from the time of the November 10, 2020 

offense forward. The timeframes she provided for various

residences were at best vague and uncertain. Indeed, Whittamore 

herself testified “[she] can’t just remember it off the top of [her] 

head” where she had lived “for every time period.” As a result, 

Whittamore had no reasonably ascertainable place of abode

pursuant to section 775.15(5). Therefore, the statute of limitations 

was tolled until Whittamore was arrested on the capias. The

prosecution is not barred.

2.

Since the statute of limitations was tolled, we need not 

address whether the capias was executed without unreasonable 

delay as required by section 775.15(4)(b). Yet, Whittamore argues 

that under section 775.15(5) the State was required—and failed—

to provide evidence of its diligent search for her. By her argument, 

Whittamore asks us to write into 755.15(5) the diligent search 

3 There is no claim by Whittamore that she had an 

ascertainable place of work. Indeed, at the hearing on her motion 

to dismiss, she testified she was unemployed.
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requirements born of section 755.15(4)(b). We decline 

Whittamore’s invitation.

The plain language of section 775.15(5) places no requirement

on the State to conduct a diligent search for a defendant. As the 

Florida Supreme Court recognized in Robinson when construing 

the continual absence contemplated by section 755.15(5):

Nowhere in section 775.15 does the statute 

require the State to prove that the continuous 

absence hindered the prosecution or that the 

State made a diligent search for a defendant

who is continuously absent in order to toll the 

limitations period. Robinson cannot point to any

express language imposing such a requirement[]

but argues, “[s]ome burden must be imposed on law 

enforcement to look for a criminally accused over 

the span of several years.” This contention is 

primarily a policy argument for what Robinson 

contends should be required, but no such burden is 

imposed by the plain and ordinary language of the 

statute. Whether proof of a diligent search 

should be required for purposes of the tolling 

provision in section 775.15(5) is a policy 

matter best considered by the Legislature and 

not a requirement to be engrafted onto the 

statute by the courts. . . . Accordingly, we will 

not engraft onto section 775.15(5) any 

requirements that the State must prove it 

conducted a diligent search or that the 

defendant’s absence hindered the prosecution when 

the State has established that the defendant was 

continuously absent from the state during the 

limitations period. 

Robinson, 205 So. 3d at 591 (emphases added).

The same reasoning applies here. Nothing in section 775.15 

requires the State to conduct a diligent search for an individual 

who has no reasonably ascertainable place of abode or work within 

the state. Different than section 775.15(4)(b)—which focuses on 

the State’s efforts to locate a defendant for purposes of determining 
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unreasonable delay in service of the capias—section 775.15(5) 

focuses on the status of a defendant as being “continuously absent 

from the state” or having “no reasonably ascertainable place of 

abode or work within the state” for tolling the statute. See

775.15(5), Fla. Stat. Certainly, to demonstrate that the applicable 

statute of limitations is tolled under this provision of section 

775.15, the State must show it was unable to ascertain a 

defendant’s place of abode or work after reasonable efforts to do so. 

However, the plain language of the statute requires reasonable 

efforts to ascertain, which is different than—and does not rise to 

the level of—performing a diligent search for such person.

III.

As Whittamore did not have a reasonably ascertainable place 

of abode or work within the state as contemplated by section 

775.15(5), Florida Statutes, the one-year statute of limitations was 

tolled. The prosecution below is not barred. Therefore, the petition 

for writ of prohibition is DENIED. 

It is so ordered.

JAY and BOATWRIGHT, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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