Marcario v. State

325 So.3d 1019

Joseph Gennaro MARCARIO, Appellant,

v.STATE of Florida, Appellee.

No. 2D19-4743

District Court of Appeal of Florida, Second District.

August 13, 2021

Andrea Flynn Mogensen, Sarasota, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Michael S. Roscoe, Assistant Attorney General, Tampa, for Appellee.

NORTHCUTT, Judge.

Joseph Marcario was convicted of attempted robbery with a firearm. But it is apparent from the face of the record that Marcario had a meritorious statute of limitations defense and that his trial counsel rendered ineffective assistance by failing to assert it. We reverse the conviction.

In 2003, the State charged Marcario with one count of attempted robbery with a weapon, a second-degree felony, see §§ 812.13(2)(b), 777.04(4)(c), Fla. Stat. (2003), after which he apparently left the country. He was located years later in Honduras. When Marcario returned to Florida in 2019, the State filed first and second amended informations, changing the charge to attempted robbery with a firearm, which is also a second-degree felony.¹ See §§ 812.13(2)(a), 777.04(4)(c). The amended informations also added a citation to section 775.087, Florida Statutes (2003), commonly referred to Florida's 10-20-Life statute. See §§ 775.087(1), (2)(a). Marcario was tried and convicted as charged. The trial court sentenced him to ten years’ imprisonment, with a ten-year mandatory minimum under the 10-20-Life statute based on his possession of a firearm.

While this appeal was pending, Marcario filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). He asserted that the State's amended charge was barred by the statute of limitations and that, because the 10-20-Life statute was cited only in the amended informations, he should not have been sentenced to a ten-year mandatory minimum term. The trial court agreed, granted the motion, and struck the mandatory-minimum component of the sentence. In this appeal, Marcario now challenges the conviction itself on the statute-of-limitations ground. He argues that his trial counsel's failure to move to dismiss the amended informations as time barred was ineffective assistance that is apparent on the face of the record.

Because the amended charge was a second-degree felony, it was subject to a three-year statute of limitations. See § 775.15(2)(b) ; see also § 775.15(5) (stating that the limitations period may be tolled when the defendant is absent from the state, but only for a maximum of three years). We conclude that the amendment to the substantive charge against Marcario outside of the limitations period was untimely.

The supreme court has explained the guiding principles on untimely amendments as follows:

This Court has carved out an exception to the [timely] filing requirement where the state, because of a clerical-type error made in good faith, improperly alleges the elements of an offense in a timely-filed charging document. In such instances, we have held that the state may amend the charging document to correct the error after the applicable statutory period has elapsed, provided that the amendment was not intended to actually change the substantive charge and did not prejudice the rights of the accused to present a defense and get a fair trial.

M.F. v. State , 583 So. 2d 1383, 1386 (Fla. 1991). Thus, the State may only amend a charging document outside of the limitations period when necessary to correct a clerical error. The amendment may not change the substantive charge or prejudice the rights of the accused.

The court in M.F. went on to review a selection of relevant district court opinions on the subject. Although all of the cases that it reviewed involved juvenile delinquency proceedings, which impose a stricter forty-five-day limitations period, the court applied the same principles quoted above, with the exception of the requirement that the defendant's rights not be prejudiced by the amendment. See id. at 1388–89 (stating that "juveniles necessarily are prejudiced when they are denied their substantive right[ ]" "to be properly charged within the applicable limitations"). Given the issues in this case, the court's discussion of the first two aspects of the analysis is sufficient to guide our inquiry.

Most instructive for this case was M.F. ’s discussion of three cases in which the State, as in this case, amended the charged offenses without materially altering the factual allegations in the charging documents:

In the second group of cases, those which dealt with amendments that altered the type of violation alleged, we begin with State v. M.M. , 557 So. 2d 217 (Fla. 2d DCA 1990). There, a timely petition alleged principal to sexual battery, but after being twice amended after the forty-five-day period elapsed, the petition alleged three different violations: principal to lewd, lascivious, or indecent assault or act upon a child; kidnapping; and aggravated assault. The district court permitted the amendments, reasoning that the alleged victim and the date of the alleged delinquent acts remained the same from the outset, with all allegations arising from the same factual incident. Since the amendments were filed early in the case and before an adjudicatory hearing was held, the district court said M.M. suffered no surprise or prejudice. In In reB.T. , 573 So. 2d 101 (Fla. 1st DCA 1991), the state timely filed a petition alleging that B.T. committed sexual battery without the victim's consent with the use of physical force and violence not likely to cause serious injury. After the forty-five-day filing period elapsed, the state amended the petition to allege that B.T. committed sexual battery upon a physically helpless victim, thereby increasing the allegation to what in adult criminal proceedings would be an offense of a higher degree. The court adjudicated B.T. delinquent at a hearing six months later, and the district court affirmed, finding that B.T. could not have been surprised or prejudiced under the facts of that case. Likewise, in In re E.M. , 362 So. 2d 427 (Fla. 4th DCA 1978), the court approved an amendment that changed the allegation of trespass to an allegation of burglary.

Each of these decisions are fatally flawed because they failed to recognize that since the design of the state was to change the allegations to different substantive violations, rather than merely correct clerical errors , the state circumvented the juveniles’ substantive rights to be properly charged within the applicable limitations imposed by section 39.05(6).

583 So. 2d at 1388 (footnote omitted) (emphasis added).

Thus, even though the State in those three cases based the amended charges on the same facts alleged in the original charges, the amendments of the substantive offenses outside the limitations periods were impermissible. That is precisely the situation before us today. Although, as the State points out, it did not alter any of the factual allegations in the amended informations and Marcario was therefore always on notice of the specific allegations against him, the amendments did not merely correct a clerical-type error. Rather, they alleged a substantive offense other than the one charged in 2003. As in the examples just described, these types of amendments were impermissible, notwithstanding that they were founded on the same allegations of fact.

The State further argues that we should focus our analysis on "whether the amended information should be deemed to have been merely a continuation of the original information." Bongiorno v. State , 523 So. 2d 644, 645 (Fla. 2d DCA 1988). But the two cases that the State cites for that proposition do not assist its cause, and the analysis in those cases appears no different than the analysis conducted in M.F. In Bongiorno , we held that an amended information was barred by the statute of limitations when it changed the charged offense from attempted sexual battery to completed sexual battery and altered the time span in which the offense was alleged to have occurred. Id. In the second case, Rubin v. State , 390 So. 2d 322, 324 (Fla. 1980), the supreme court held that the State's amended charging document changing only the name of the corporate victim did not run afoul of the statute of limitations because the State was merely correcting a "slight inaccuracy" in the name of the victim, the amended information itself noted that it was a "refile" of the same case, and the charges in the original and amended informations were identical. Id. These outcomes are entirely consistent with the rule applied in M.F. , i.e., that outside the statute of limitations period the State may correct clerical-type errors in an information, but it cannot alter the substantive charge or the allegations supporting it.

Thus, we agree with Marcario's assertion that the State's amended informations were barred by the statute of limitations. However, because Marcario's counsel failed to make this argument to the trial court, on direct appeal he may obtain relief on this basis only if counsel's omission amounted to ineffective assistance that is apparent on the face of the record. See State v. Smith , 241 So. 3d 53, 56 (Fla. 2018) (holding that, while a...