DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

WILGY THERLONGE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D13-2024

[July 15, 2015]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Richard L. Oftedal, Judge; L.T. Case No. 

2011CF010869AMB.

Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant 

Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven 

Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.

ON MOTION FOR REHEARING

FORST, J.

We grant the Motion for Rehearing filed by Appellee State of Florida, 

withdraw our previously issued opinion dated May 20, 2015, and replace 

it with the following:

Appellant Wilgy Therlonge was convicted of lewd and lascivious battery 

of a person under sixteen years of age. His appeal challenges the trial 

court’s construction of section 775.15(16)(a)4., Florida Statutes (2007),

which extends the statute of limitations for lewd and lascivious offenses. 

As no DNA evidence pertinent to the crime was collected and preserved for 

later testing during the “original investigation” within the meaning of the 

statute, we reverse. 

Background

On January 10, 2008, police were informed that a sixteen-year-old girl 
2

gave birth about a month prior. At the time of conception, the girl was 

fifteen. Police began investigating Appellant, a twenty-nine-year-old, since

he was named as the father on the child’s birth certificate. Appellant 

learned of the investigation and apparently fled the state. Over the course 

of three years, the case was declared “inactive” at least twice, but remained 

open while officers made intermittent attempts to locate Appellant. 

Eventually, Appellant was located on October 11, 2010. Police obtained 

a DNA sample from him at that time, and took samples from the girl and 

her baby the next day. The DNA results, received by law enforcement on 

or about April 1, 2011, could not exclude Appellant as the father of the 

child. At this point, the police requested a warrant to arrest Appellant.

On October 7, 2011—after the statute of limitations period expired as

over three years had passed since the crime was reported to law 

enforcement—Appellant was charged with lewd and lascivious battery of a 

person under sixteen years of age. Despite the time lapse, the State argued 

that it was permitted to continue the prosecution under section 

775.15(16)(a), which provides an extension to the statute of limitations 

period in certain circumstances: 

In addition to the time periods prescribed in this section, a 

prosecution for [a lewd or lascivious offense] 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 

deoxyribonucleic acid (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[.] 

§ 775.15(16)(a)4., Fla. Stat. (2007) (emphasis added).1

Appellant moved to dismiss the charge, arguing that section 

775.15(16)(a) could not be applied to his case because the child’s DNA was 

not obtained during the “original investigation” within the meaning of the 

statute. The trial court denied the motion, noting that, between 2008 and 

2010, law enforcement was “always exercising due diligence to try and find 

[Appellant]; therefore, the investigation, the original investigation never 

ceased and it was ongoing.” Subsequently, Appellant was convicted,

declared a sexual offender, and sentenced to thirteen years imprisonment. 

1 No such extension of the statute of limitations is available for the charge of 

impregnation of a child.
3

Analysis

We review issues of statutory interpretation de novo. D.A. v. State, 11 

So. 3d 423, 423 (Fla. 4th DCA 2009).

When confronted with a question of statutory interpretation, the 

reviewing court must first look to the statute’s actual language. Bryan v. 

State, 865 So. 2d 677, 679 (Fla. 4th DCA 2004). “In analyzing statutory 

language, reviewing courts must give the statutory language its plain and 

ordinary meaning, ‘and cannot add words which were not placed there by 

the Legislature.’” State v. Little, 104 So. 3d 1263, 1265-66 (Fla. 4th DCA 

2013) (quoting Brook v. State, 999 So. 2d 1093, 1097 (Fla. 5th DCA 2009)).

We reject the trial court’s conclusion that there was an “original, 

ongoing investigation” (emphasis added) sufficient to trigger the extension 

period of section 775.15(16)(a)4. We acknowledge that this statute was 

intended to apply where a DNA sample was obtained shortly after the 

commission of a crime where the identity of the source of the DNA is 

unknown. Here, Appellant was hardly unknown, as he was named as the 

child’s father on the birth certificate. Nonetheless, our decision is dictated 

by the plain language of the statute and the fact that no DNA evidence of 

the crime was collected during the “original investigation” to preserve for 

comparison against an accused and thus trigger the application of the 

extension period under section 775.15(16)(a)4. During the period when 

police first learned of the potential lewd and lascivious behavior until the 

time the case was initially declared “inactive,” the onus was on the police 

to collect evidence to preserve for a later match—in this case, the DNA of 

the child. DNA evidence was collected only after Appellant was located by 

the investigating police department upon being arrested for a different 

charge, well after the original investigation had first been declared 

“inactive.”

Conclusion

We reverse and vacate Appellant’s conviction and sentence, including 

his designation as a sexual offender, as the extension of the statute of 

limitations period under section 775.15(16)(a) is inapplicable in the instant 

case. Appellant’s prosecution was commenced over three years after the 

alleged crime was first reported and thus the statute of limitations has

run. Accordingly, we direct Appellant's immediate discharge with respect 

to the charge at issue in this case.

Reversed.
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WARNER and GROSS, JJ., concur.

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