DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

MARKUS LEON BROWN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D14-3476

[November 18, 2015]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. 

Lucie County; Robert E. Belanger, Judge; L.T. Case No. 56-2011-

003934CFA.

Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant 

Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Catherine Linton, 

Assistant Attorney General, West Palm Beach, for appellee.

GROSS, J.

We reverse one of two convictions in a child abuse case because 

prosecution of that offense was barred by the applicable statute of 

limitations. We affirm the other conviction.

On December 30, 2011, the State charged Markus Brown with two 

counts of sexual battery by a person in a position of familial authority in 

violation of Section 794.011(8)(b), Florida Statutes (1997). The State 

alleged that Brown committed sexual battery on his two minor daughters—

Y.B. and C.B.—from May 1, 1997 through July 31, 1998.

At the time the offenses were committed, the applicable limitations 

period for the offenses charged was four years. See § 775.15(2)(a), Fla. 

Stat. (1997). Section 775.15(7) provided in relevant part: 

If the victim of a violation of s. 794.011 . . . is under the age 

of 16, the applicable period of limitation, if any, does not 

begin to run until the victim has reached the age of 16 or
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the violation is reported to a law enforcement agency or 

other governmental agency, whichever occurs earlier. 

(Emphasis added).

Y.B. turned 16 on March 29, 1999. The abuse of Y.B was reported to 

the Department of Children and Families (“DCF”) on April 29, 1998. C.B. 

turned 16 on May 1, 2001. The abuse against her was reported to DCF 

on November 15, 1999. Because the violations were reported to DCF 

before the victims turned 16, pursuant to section 775.15(7), the limitations 

period would have expired on April 29, 2002, for Y.B., and on November 

15, 2003, for C.B., respectively.

Appellant moved to dismiss both counts on the grounds that the 

prosecution was barred by the statute of limitations. He contended that 

more than four years had passed since the reports to DCF. 

Opposing the motion, the State directed the trial court to a 2003 

amendment to the statute of limitations. The amendment provided that:

[I]f the offense is a first degree felony violation of s. 794.011 

and the victim was under 18 years of age at the time the 

offense was committed, a prosecution of the offense may be 

commenced at any time. This paragraph applies to any such 

offense except an offense the prosecution of which would have 

been barred by subsection (2) on or before October 1, 2003. 

§ 775.15(7)(b), Fla. Stat. (2003)1 (emphasis added). Pursuant to this 

amendment, the State argued that because Y.B. turned 18 on March 29, 

2001, and C.B. turned 18 on May 1, 2003, the charges relating to both 

victims could have been prosecuted well after October 1, 2003, and would 

thus be covered by this amendment. 

The trial court denied the motion, commenting that the motion was 

untimely and suggesting that the 2003 amendment permitted the 

prosecutions for both crimes. 

Brown pled no contest and reserved the right to appeal the court’s 

denial of his motion to dismiss. He was adjudicated guilty and sentenced 

to concurrent 25-year terms of imprisonment. 

1Subsequent to the 2003 amendment, Section 775.15(7)(b), was redesignated 

Section 775.15(13)(b) on July 1, 2005. See Ch. 2005-110, Laws of Fla. 
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The only disputed issue on appeal is whether the trial court improperly 

applied the 2003 amended statute in ruling that prosecution was not 

barred.2 The viability of Brown’s motion to dismiss is a question of law 

that we review de novo. See Erhlick v. State, 898 So. 2d 237, 238 (Fla. 4th

DCA 2005).

“The statutes of limitation applicable are those which were in effect at 

the time of the incidents giving rise to the criminal charges.” State v. Mack, 

637 So. 2d 18, 19 (Fla. 4th DCA 1994). “Statutes of limitations, as a 

general rule, affect substantive rights” and “[s]tatutes which affect 

substantive rights are presumed to operate prospectively absent clear 

legislative intent to the contrary.” State v. Shamy, 759 So. 2d 728, 729 

(Fla. 4th DCA 2000). “However, the legislature can amend statutes of 

limitation to apply retroactively without running afoul of the constitutional 

ex post facto prohibition if it (a) does so before prosecution is barred by 

the old statute, and (b) clearly indicates that the new statute is to apply 

retroactively to cases pending when it becomes effective.” Scharfschwerdt 

v. Kanarek, 553 So. 2d 218, 220 (Fla. 4th DCA 1989).

Scharfschwerdt held that an amendment to a statute of limitations 

could be retroactively applied to a defendant where the limitations period 

under the old statute had not run against him at the time the amendment 

went into effect. Id. at 220. In that case, the defendant was charged in 

January 1989 with, among other things, sexual battery in violation of 

section 794.011, alleged to have occurred between January and August 

1983. Id. at 219. The limitations period in effect at that time was four 

years. Id. The legislature amended the limitations period in 1985 to extend 

the statute of limitations for violations of 794.011. Id. The amendment 

also provided: “This subsection applies to any offense except for one which 

would have been time barred by the ordinary statute of limitations on or 

before December 31, 1984.” Id.

The defendant in Scharfschwerdt argued that applying the 1985 

amendment to him “constitute[d] an unconstitutional ex post facto law 

since it deprive[d] him of a vested right; i.e., the onset of the limitation 

period.” Id. This court disagreed, finding that the 1985 amendment 

“reflect[ed] a clear legislative intent to extend prosecutions . . . to those 

offenses not time barred on or before December 31, 1984.” Id. at 220. We 

explained:

The limitation period under the old statute had not run 

against the petitioner. Thus, the amendment did not inflict 

2The State does not assert that either motion was untimely.
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additional punishment on petitioner. It did not change the 

legal consequence of the acts completed before the effective 

date. It was not more onerous than the prior law. It did not 

add to the quantum of punishment nor did it deprive 

petitioner of a defense which was available when the offense 

was committed.

Id. 

Brown cites to Torgerson v. State, 964 So. 2d 178 (Fla. 4th DCA 2007),

to argue that the amended statute relied on by the State was not applicable 

to appellant. However, Torgerson involved a statute that, unlike the 

statute in this case, was not intended to be applied retroactively. As a 

result, we held in Torgerson that the State was bound by the statute of 

limitations in force on the date of the crime charged in the information, 

not by a statute that went into effect afterwards. Id. at 179.

Unlike the situation in Torgerson, the 2003 amended version of the 

statute added an entirely new subsection specifically providing that the 

prosecution of an offense satisfying certain requirements “may be 

commenced at any time.” See § 775.15(7)(b). Subsection (7)(b) goes on to 

say it applies to “any such offense except an offense the prosecution of 

which would have been barred by subsection (2) on or before October 1, 

2003.” Thus, the amendment applies to those cases that could have been 

prosecuted after October 1, 2003.

The State acknowledges that in its argument to the trial judge it 

incorrectly used the birthdates of Y.B. and C.B. to calculate the start time 

for the statute of limitations. Applying the birthdates, instead of the 

reporting dates of the crimes, led to the trial court’s finding that the crimes 

against both Y.B. and C.B. were not barred by the statute of limitations. 

However, because the crimes were reported to a “law enforcement or other 

governmental agency” before either victim reached age 16, it was the 

reporting date that triggered the statute of limitations.

We agree with the State that the conviction pertaining to C.B. is not 

affected by using the reporting date to start the statute of limitations. 

Applying that date, the statute of limitations pertaining to the C.B. charge 

would not have expired until November 15, 2003, which is after the 

October 1 cutoff date in the 2003 amendment. “[I]f a trial court reaches 

the right result, but for the wrong reasons, it will be upheld if there is any 

basis which would support the judgment in the record.” Dade Cnty. Sch. 

Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999).
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The crime against Y.B. was reported to DCF on April 29, 1998, so the 

statute of limitations applicable to her expired on April 29, 2002, meaning 

that prosecution of the offense pertaining to her would have been barred 

“on or before October 1, 2003.” § 775.15(7)(b), Fla. Stat. (2003). Thus, 

the 2003 amendment cannot be applied to extend the statute of 

limitations. For this reason, we reverse the conviction where Y.B. was the 

victim because the statute of limitations on that charge had run.

Affirmed in part, reversed in part and remanded.

CIKLIN, C.J., and GERBER, J., concur. 

* * *

Not final until disposition of timely filed motion for rehearing.