       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
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.

                                       2
                                  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.

                                      3
WARNER and GROSS, JJ., concur.

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