        Third District Court of Appeal
                                State of Florida

                          Opinion filed October 18, 2017.
          Not final until disposition of timely filed motion for rehearing.



                                No. 3D17-1271
                           Lower Tribunal No. 13-4846


                               Cedric S. Brown,
                                     Petitioner,

                                          vs.

                             The State of Florida,
                                    Respondent.



       A Case of Original Jurisdiction – Habeas Corpus.

       Cedric S. Brown, in proper person.

      Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior
Assistant Attorney General, for respondent.


Before SALTER, FERNANDEZ and LUCK, JJ.

      SALTER, J.

      Cedric Brown’s petition for habeas corpus raises three claims of ineffective

assistance of appellate counsel. Finding that one of the claims merits consideration
and conditional relief, we grant in part and deny in part the petition.

        In April 2013, Brown was charged with 12 counts of sexual battery without

serious injury (section 794.011(5)(a), Florida Statutes) and one count of incest

(section 826.04, Florida Statutes).1 In May 2015, the State filed an amended

information, containing three counts. Count 1 was a restatement of Count 12 of the

original information, alleging sexual battery on a child between the ages of 12 and

16 based on acts committed between February 1 and 29, 2012.2 Count 2 was a new

charge alleging lewd or lascivious sexual battery on a child between the years of 12

and 16 (section 800.04(4)(a)1., Florida Statutes) based on acts occurring between

January 1, 2001, and December 31, 2007. Count 3 was a restatement of Count 13

of the original information, alleging incest.

        Brown was convicted on all three counts of the amended information. At his

sentencing in January 2016, the State candidly raised with the trial court the

possibility that the charge and conviction on Count 2 might be barred by the three-

year statute of limitations applicable to lewd or lascivious sexual battery (section

775.15(2)(b), Florida Statutes).3     Specifically, Count 2 of the 2015 amended
1  Each of the first 11 counts alleged the sexual battery crimes between January 1
and December 31 of the years between 2001 and 2011, respectively. Count 12
alleged sexual battery between February 1, 2012, and February 29, 2012. Count 13
alleged that the acts of incest were committed between January 7, 2001, and
February 29, 2012. The pertinent portions of the statutes were unchanged during
the applicable time periods.
2   The State nol prossed Counts 1 through 11 of the original, 2013 information.

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information alleged that the criminal incidents occurred between January 1, 2001,

and December 31, 2007. As a result, Brown argues, the three year statute of

limitations expired at the end of 2010, years before Count 2 was added to the

amended information.

      This issue was not raised by appellate counsel in Brown’s appeal to this

Court in 2016. His conviction was affirmed, per curiam, in March 2017. Brown v.

State, 2017 WL 1174761 (Fla. 3d DCA 2017) (unpublished).             In response to

Brown’s petition for ineffective assistance of appellate counsel, the State now

argues that Count 2 is not barred by the statute of limitations because it was a

“continuation” of the sexual battery claims in Counts 1 to 11 of the original

information, or was sufficiently connected to those initial charges, citing State v.

Douglas, 919 So. 2d 481 (Fla. 3d DCA 2006), to survive a statute of limitations bar.

      We disagree.      The sexual battery claim in Count 12 of the original

information was based on alleged criminal conduct that concluded by February 29,

2012. But the lewd or lascivious battery claim in Count 2, the subject of an entirely

different statute, was based on alleged incidents occurring no later than December

31, 2007, and would have been barred by the applicable statute of limitations even

if included in the original information filed in April 2013.


3  In an equally candid colloquy, Brown’s defense counsel at the sentencing
advised the Court that her research indicated that the statute of limitations did not
bar the prosecution of Count 2 of the amended information.

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        Evaluating Brown’s claim on this point under the standard in Bevel v. State,

221 So. 3d 1168, 1180 (Fla. 2017), and Strickland v. Washington, 466 U.S. 668

(1984), we find that both of the requisite prongs—deficient performance on the part

of counsel, and prejudice—are satisfied. The record discloses no tactical basis4 for

trial or appellate counsel to have failed to pursue the statute of limitations defense

available to Brown regarding Count 2 of the amended information. The prejudice

is apparent in the fifteen-year sentence on that Count, to be served consecutively

with the thirty-year sentence on Count 1.

        We grant the petition in part as to Count 2. We remand to the trial court to

re-sentence Brown based on his convictions on Count 1 and 3, but not Count 2, as

Count 2 was barred by the applicable statute of limitations.5

        We find no merit in Brown’s other claims, which are denied.              Petition

granted in part and denied in part, with instructions for further proceedings.




4   See, e.g., Mathis v. State, 204 So. 3d 104, 105-06 (Fla. 1st DCA 2016).
5 Whether the statute of limitations defense was raised and ruled upon in the first
instance before or during trial could subsequently become pertinent depending on a
determination of the preservation issue detailed in Smith v. State, 211 So. 3d 176,
187-204 (Fla. 3d DCA 2016) (Emas, J., concurring), review granted, 2017 WL
3483657 (Fla. May 24, 2017). Although we note this point in passing, we express
no opinion regarding the applicability of any ruling in Smith to the record in the
present case.

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