       Third District Court of Appeal
                               State of Florida

                         Opinion filed December 2, 2015.
         Not final until disposition of timely filed motion for rehearing.
                               ________________

                               No. 3D12-1563
                         Lower Tribunal No. 08-36665
                             ________________

                                Hector Pulido,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.


     An Appeal from the Circuit Court for Miami-Dade County, Victoria R.
Brennan, Judge.

     Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public
Defender, for appellant.

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


Before SHEPHERD, LAGOA and FERNANDEZ, JJ.

      FERNANDEZ, J.

      Hector Pulido appeals his convictions and sentences for burglary of an

unoccupied dwelling, criminal mischief, and grand theft. Additionally, Pulido
appeals the denial of his motion to dismiss the charges. We reverse Pulido’s

conviction for criminal mischief because that offense is time-barred. Further, we

affirm the convictions for grand theft and burglary of an unoccupied dwelling.

Lastly, we remand the grand theft conviction for re-sentencing because grand theft

is not an offense that supports a sentence as a violent career criminal, pursuant to

section 775.084, Florida Statutes (2012).

      On January 6, 2005, a break-in occurred at an unoccupied dwelling.

Approximately, three years and nine months later, on October 24, 2008, the State

filed an information against Pulido for burglary of that unoccupied residence,

criminal mischief, and grand theft. The State relied on DNA evidence of blood

found outside of the windowsill of the house that tied Pulido to the charged

offenses.

      Pulido moved to dismiss the charges.         He argued that the statute of

limitations on the criminal mischief count had expired on June 30, 2006, before the

State filed the information. He further claimed that the criminal mischief and

grand theft counts were not listed as delineated offenses to which the legislative

DNA extension in section 775.15(15)-(16), Florida Statutes (2006), applied.

Pulido acknowledged the burglary count was a delineated offense, but argued the

burglary count was also time-barred.




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      The trial court denied Pulido’s motion to dismiss, and Pulido received a

conviction on all counts. He received a minimum mandatory sentence of thirty

years as a violent career criminal on the burglary of an unoccupied dwelling count.

On the grand theft count, he received a sentence of fifteen years with a minimum

mandatory sentence of ten years, also as a violent career criminal, to run

concurrent with the burglary of an unoccupied dwelling count. The trial court

sentenced Pulido on the criminal mischief charge to 364 days in the Dade County

Jail to run concurrent with counts one and two as a prison release re-offender.

      We reverse Pulido’s conviction for criminal mischief. The applicable

limitation period for this offense, a first-degree misdemeanor, was two years,

pursuant to section 775.15(2)(c), Florida Statutes (2005).         Because Pulido

committed the offense on January 6, 2005, the two-year statute of limitations

period expired on January 5, 2007, well before the October 24, 2008 date on which

the State filed the information. Additionally, criminal mischief is not one of the

delineated offenses in section 775.15(16), Florida Statutes (2008), which extends

the time for prosecution based upon DNA evidence for certain delineated offenses

that were not time-barred on or after July 1, 2006. The trial court thus should have

dismissed the criminal mischief charge.

      We affirm the conviction for grand theft but remand to the trial court for re-

sentencing, as the State correctly concedes that the violent career criminal



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enhancement on the conviction constituted error. This Court previously held that

under section 775.084, Florida Statutes (2012), a grand theft conviction cannot

support sentencing a defendant as a violent career criminal because grand theft is

not enumerated as a predicate offense in the statute. See Ubilla v. State, 8 So. 3d

1200, 1201 (Fla. 3d DCA 2009).

       The conviction for burglary of an unoccupied dwelling is likewise affirmed.

Pulido is mistaken in his assertion that he is entitled to discharge based on the three

year and nine month delay between the date of the offense and the date on which

the State filed the information. His reliance on Doggett v. United States, 505 U.S.

647 (1992), is misplaced as the Supreme Court in that case reversed the

defendant’s conviction because the eight and half year delay between the

defendant’s indictment and arrest violated the defendant’s Sixth Amendment right

to a speedy trial. Id. at 652. The delay here is between the date of the offense and

the date on which the State filed the information. “On its face, the protection of

the Sixth Amendment is activated only when a criminal prosecution has begun and

extends to those persons who have been accused in the course of that prosecution.”

U.S. v. Marion, 404 U.S. 307, 313 (1971). The Sixth Amendment does not “reach

. . . to the period prior to the arrest.” Id. at 321.

       Furthermore, in the case of a lengthy delay between the date of the offense

and the arrest, filing of information, or otherwise formal accusation, the defendant



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has the burden of proof. Pulido has failed to satisfy his burden. In Hallman v.

State, 41 So. 3d 1060 (Fla. 3d DCA 2010), the defendant was arrested twenty-five

months after the offense date. This Court in that case re-affirmed its prior holding

in Barber v. State, 438 So. 2d 976, 977–78 (Fla. 3d DCA 1983), which held that

the defendant has the burden to prove actual prejudice. See Hallman, 41 So. 3d at

1061. If the defendant cannot satisfy that burden, the inquiry stops there. Id.

Pulido has failed to show actual prejudice.

      Accordingly, we reverse Pulido’s conviction for criminal mischief, affirm

the convictions for grand theft and burglary of an unoccupied dwelling, but remand

the grand theft conviction for re-sentencing consistent with this opinion. We

decline to address the remaining arguments raised.

      Affirmed in part, reversed in part, and remanded for further proceedings.




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