       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          STATE OF FLORIDA,
                              Appellant,

                                     v.

                            PASCAL ESTIME,
                               Appellee.

                              No. 4D18-101

                           [December 19, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Samantha Schosberg Feuer, Judge; L.T. Case No.
2017CF006709AXXXMB.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman,
Assistant Attorney General, West Palm Beach, for appellant.

   Carey Haughwout, Public Defender, and David John McPherrin,
Assistant Public Defender, West Palm Beach, for appellee.

HILAL, JENNIFER, Associate Judge.

   The State appeals the trial court’s order granting the defendant’s
motion to dismiss the State’s information based on expiration of the
statute of limitations, and the amended order denying the State’s request
to reconsider ruling. We reverse, finding that section 775.15(16)(a)3.,
Florida Statutes (2006), extends the statute of limitations in the case at
hand.

   Background

   In 2017, the State charged the defendant, Pascal Estime, by
information with two counts of sexual battery on a mentally defective
person pursuant to section 794.011(4)(a) and (e)5., Florida Statutes, based
on events that occurred in 2004.

   In April 2004, the victim’s father told law enforcement that his daughter
had told him that the defendant had sexual relations with her, which led
to her pregnancy. The victim provided law enforcement with a sworn
statement, alleging that the defendant had sex with her twice. The police
then obtained the victim’s medical and school records, which showed she
had an IQ of 40 to 55. After reporting the crime, the victim had an
abortion, and law enforcement retained a sample of the fetus for DNA
testing. After numerous unsuccessful attempts to locate the defendant,
law enforcement obtained a search warrant for his DNA and issued a “be
on the lookout” (BOLO) alert.

   In August 2004, a licensed psychologist evaluated the victim and found
that she was severely mentally challenged, with abilities comparable to a
four-year-old child. He concluded that she was unable to consent to
sexual activity and was aware of only the basic concepts of sexual
intercourse. He further found that “her poor memory, minimal verbal
skills, and inability to think in anything but the simplest and most
concrete terms rendered her marginally competent at best.” The
psychologist also noted that the victim “frequently did not respond to
questions” and could not focus for more than a minute at a time,
concluding “that she would become very confused on cross-examination
and unable to respond adequately.” As a result, in September 2004, the
State “no actioned” the case, pending receipt of the defendant’s DNA and
testing of the evidence.

   In 2017, after many unsuccessful attempts to locate the defendant, US
Customs and Border Protection advised law enforcement that the
defendant had returned to Florida.       Law enforcement located the
defendant and executed a DNA search warrant. The defendant’s DNA
sample and the retained fetal material were sent for comparison, and the
results showed a 99.9997% probability of paternity. The defendant was
subsequently arrested in July 2017 for two counts of sexual battery on a
mentally defective person under section 794.011(4), Florida Statutes.

   The defendant moved to dismiss the information, arguing that the
applicable four-year statute of limitations (“SOL”) had expired before
commencement of the prosecution.            He noted that under section
775.15(2)(a), Florida Statutes (2004), the SOL for the prosecution of a first-
degree felony is four years from the date of the offense. He recognized that
section 775.15(16)(a)3., Florida Statutes (2006) 1, extends the SOL under
certain circumstances. It provides:
________________________________________________________________________
1 On appeal, the defendant argues that subsection 16(a) does not apply
retroactively to his case. In 2006, the Florida legislature amended section
775.15, adding subsection (16)(a). This subsection is retroactive and applies to
the case at hand. “[T]he legislature can extend the limitations period without


                                       2
       (16)(a) In addition to the time periods prescribed in this
       section, a prosecution for any of the following offenses
       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:

       ....

       3. An offense of sexual battery under chapter 794.

§ 775.15(16)(a)3., Fla. Stat. (emphasis added). The defendant contended
that the victim identified him as the perpetrator in 2004, and DNA
evidence merely corroborated her allegations. Thus, he argued DNA did
not “establish” his identity, and subsection 16(a) did not apply.

   The State responded, contending section 775.15(16)(a)3. applied
because DNA evidence was collected from the fetal sample at the time of
the original investigation in 2004, which law enforcement later used in
2017 to identify the defendant once his DNA sample was collected. The
State argued the victim’s identification of the defendant during the initial
investigation did not establish, for purposes of the statute, the defendant’s
identity as the perpetrator, given the victim’s severe intellectual disability.
The State contended there was a difference between circumstantial
evidence of identity and identification through DNA analysis, and it further
argued that the plain language of the statute provides that the extension
applies when identification occurs through DNA analysis.

    At the hearing on the defendant’s motion, defense counsel argued that
at the time of the allegations, the State had sufficient evidence to sustain
________________________________________________________________________
violating the constitutional prohibition against ex post facto laws if it (a) does so
before prosecution is barred by the old statute, and (b) clearly indicates that the
new statute is to apply to cases pending when it becomes effective.” Bryson v.
State, 42 So. 3d 852, 854 (Fla. 1st DCA 2010) (quoting Andrews v. State, 392 So.
2d 270, 271 (Fla. 2d DCA 1980)). Further, section 775.15(16)(b) clearly states
that the “subsection applies to any offense that is not otherwise barred from
prosecution on or after July 1, 2006.” It is clear section 775.15(16)(a) would be
applicable to the present case. The alleged crime occurred in 2004, and the four-
year SOL had not expired in 2006 when the statute was amended.


                                         3
a conviction based upon the victim’s identification; thus, the SOL began
to run in 2004. The State countered that subsection 16(a) applies
whenever identification occurs through DNA analysis. It argued that
under the defendant’s interpretation the subsection would apply only
when law enforcement had no suspects and had only DNA with which to
identify a defendant.

   The trial court granted the defendant’s motion to dismiss the
information. It ruled that the prior evidence of the defendant’s identity
was not circumstantial because the victim gave a sworn statement, in
which she described the defendant and the sexual acts. It concluded that
the DNA evidence only corroborated, but did not establish, the defendant’s
identity.

    The State moved for rehearing, arguing the trial court incorrectly
concluded that identity must be established solely through DNA in order
for section 775.15(16)(a) to apply, which was “a limitation not imposed by
the plain language of the statute itself.” The State noted that when law
enforcement could not locate the defendant in 2004, the State “no
actioned” the case because it believed that the evidence was legally
insufficient. The defendant argued that the trial court properly determined
the SOL extension did not apply.

  After a hearing, the trial court entered an order denying the State’s
motion for reconsideration and again found that the defendant’s identity
was established in 2004 for purposes of triggering the four-year SOL.

   Analysis

   We review issues of statutory interpretation de novo. Bryson, 42 So.
3d at 853-54. When a defendant raises an SOL defense, the State bears
the burden of showing compliance with the statute (i.e., that the crime was
committed within the limitations period) or establishing an exception to
the limitations period. State v. Smith, 241 So. 3d 53, 55 (Fla. 2018). In
the present case, the State filed its information in 2017, well beyond the
four-year SOL. Thus, the pertinent issue is whether the SOL extension
applied. The issue boils down to statutory interpretation.

    For questions of statutory interpretation, we first must look at the
statute’s actual language to determine the legislature’s intent, construing
words of common usage in their plain and ordinary sense. Crews v. State,
183 So. 3d 329, 332 (Fla. 2015). “If statutory language is clear,
unambiguous, and conveys a definite meaning, there is no reason to resort
to the rules of statutory interpretation.” Bryson, 42 So. 3d at 854. A court

                                     4
is not permitted to judicially modify a statute by adding words not included
by the legislature, nor can it limit the express terms of an unambiguous
statute. See Hayes v. State, 750 So. 2d 1, 4 (Fla. 1999); Holly v. Auld, 450
So. 2d 217, 219 (Fla. 1984). Where words of common usage are not
defined in a statute, they are construed in their plain and ordinary sense.
See State v. Brake, 796 So. 2d 522, 528-29 (Fla. 2001); see also Pedersen
v. Green, 105 So. 2d 1 (Fla. 1958). The plain and ordinary meaning of a
word or term is often examined by reference to a dictionary. See Brake,
796 So. 2d at 528-29.

   The State contends that the plain meaning of the statute and the word
“establish” are unambiguous, and based on the plain meaning, the
defendant’s identity was not proven during the initial investigation in
2004. Thus, the SOL extension applies. The State cites Merriam-
Webster’s online dictionary, which defines “establish” as “to make firm or
stable” and “to put beyond doubt: PROVE.” Establish, MERRIAM-WEBSTER
ONLINE     DICTIONARY,     https://www.merriam-webster.com/dictionary/
establish (last visited Oct. 17, 2018). Additionally, the State notes that
Black’s Law Dictionary defines “establish” as “[t]o prove; to convince . . . .”
Establish, BLACK’S LAW DICTIONARY (8th ed. 2004).

   The defendant counters that because subsection 16(a) does not define
“establish,” it is ambiguous regarding whether it applies to cases in which
there are multiple means of identification. The defendant stressed that
while “establish” is defined as “to make firm” and “to prove or convince,” it
also is defined as “to bring about” or “to cause to be . . . .” Establish, THE
AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (5th ed. 2011);
Establish, MERRIAM-WEBSTER ONLINE DICTIONARY, https://www.merriam-
webster.com/dictionary/establish (last visited Oct. 17, 2018).             The
defendant contends the plain meaning of “establish” is unclear and that
we must construe the statute in his favor. See Maxwell v. State, 110 So.
3d 958, 961 (Fla. 4th DCA 2013) (recognizing that if two competing
interpretations are reasonably plausible, a court must strictly construe the
statute in the accused’s favor).

   “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)). Black’s Law Dictionary lists various
dictionary examples of the word’s usage. For instance, for the definition
upon which the defendant relies, “to make or form; to bring about,” the
dictionary provides the example, “Congress has the power to establish
Article III courts,” but for the definition “to prove; to convince,” the

                                      5
dictionary gives the example, “to establish the president’s guilt.” Establish,
BLACK’S LAW DICTIONARY (8th ed. 2004).

   Reading the statute as a whole in the context of subsection 16(a), the
plain meaning of “establish” is “to prove.” See Miele v. Prudential-Bache
Sec., Inc., 656 So. 2d 470, 472 (Fla. 1995) (determining the meaning of a
term by looking at the statute as a whole). If the legislature had intended
the statute to apply only to cases where the defendant’s identity was
completely unknown, it could have used the word “discover,” which would
have limited the statute’s application. However, it did not. It is not our
role to act as the Legislature or to add words to the statute which do not
exist. Boulis v. Blackburn, 16 So. 3d 186, 189 (Fla. 4th DCA 2009). It is
well known that an accused’s identity may be established by more than
one means. The statute does not limit its application to cases where DNA
analysis provides the first or only means of identification. Such a reading
adds an exclusion to the statute that does not exist.

   Furthermore, we find that the defendant’s identity was not “proven”
during the initial investigation.   Although the victim identified the
defendant, she was severely mentally challenged. Her competency to
testify was questionable. As such, the defendant’s identity was not
established, or “put beyond doubt,” until the 2017 DNA analysis, which
showed a 99.9997% likelihood of paternity. Thus, the SOL extension
applies pursuant to section 775.15(16)(a)3., Florida Statutes (2006).

   Conclusion

   The trial court erred in granting the motion to dismiss the information;
thus, we reverse the trial court’s ruling and remand for further
proceedings.

   Reversed and Remanded.

FORST, J., concurs.
MAY, J., concurs specially with opinion.

MAY, J., (specially concurring).

   I concur with the majority’s decision to apply section 775.15(16)(a)3.,
Florida Statutes, to extend the statute of limitations in this case. I do so
based on the unique circumstances concerning this victim’s mental
capacity, and the State’s inability to rely upon her sworn statement to
“establish” the perpetrator’s identity. I disagree, however, that this statute


                                      6
can be applied to extend the statute of limitations any time DNA evidence
is used to confirm the perpetrator’s identity.

    As the defendant argues, subsection 16(a) does not define “establish.”
As used in this statute, “establish” is susceptible to more than one
meaning. “Because . . . persons of reasonable intelligence could differ on
which [meaning] was intended, the statute is at the very least ambiguous
and ‘must be strictly construed most favorably to the accused.’” Maxwell
v. State, 110 So. 3d 958, 961 (Fla. 4th DCA 2013) (quoting Polite v. State,
973 So. 2d 1107, 1112 (Fla. 2007)). The rule of lenity requires us to do
so. See § 775.021(1), Fla. Stat. (2006).

   Thus, in a situation in which a competent victim identifies the
perpetrator, and identification is therefore established, I do not believe the
statute can be used to extend the statute of limitations simply because
that identification is later confirmed by DNA evidence. To the extent the
majority opinion can be read to allow such an extension of the statute of
limitations, I disagree with it. With that being said, the unique mental
incapacity of the victim in this case renders the statute unambiguous as
applied. I therefore concur with the majority in reversing the order
dismissing the information and the subsequent order denying the State’s
motion for reconsideration.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




                                      7
