James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee.
SILBERMAN, Chief Judge.
Willie Leroy Palmer seeks review of his judgment and sentence for resisting arrest with violence. Palmer was charged with battery on a law enforcement officer and entered a negotiated guilty plea to the reduced charge while reserving the right to appeal the denial of two dispositive motions to dismiss. We affirm as to the denial of both motions but write to discuss why Palmer was not entitled to dismissal under the speedy trial rule.
The applicable speedy trial rule, Florida Rule of Criminal Procedure 3.191(a), provides that a defendant must be brought to trial within 90 days of being arrested if he is charged with a misdemeanor and within 175 days of being arrested if he is charged with a felony. Following an incident on November 23, 2008, Palmer was arrested and subsequently charged with misdemeanor battery. The speedy trial period for the misdemeanor charge expired on February 21, 2009.
At that point, Palmer was entitled to enforce his speedy trial right by filing a notice of expiration of speedy trial. See State v. Pfeiffer, 872 So.2d 313, 314 (Fla. 4th DCA 2004). The notice would trigger the recapture period under rule 3.191(p)(2). Id. However, Palmer did not seek to enforce his speedy trial rights by filing a notice of expiration.
The case proceeded to arraignment on March 23, 2009, and the court set a trial date. Two days before trial was scheduled, defense counsel moved for a continuance. The trial court granted the motion, but the State nol prossed the misdemeanor charge before the rescheduled trial date.
On April 29, 2009, the State filed an information based on the November 2008 incident charging Palmer with battery on a law enforcement officer. Absent waiver or tolling of the time, the speedy trial period for this felony charge would have expired on May 17, 2009, which was 175 days after Palmer's initial arrest on November 23, 2008. Palmer's first notice of the felony charge was provided when he was arrested on the charge in October 2009. On November 3, 2009, Palmer was arraigned. He subsequently filed a motion to dismiss the felony battery charge based on the expiration of the speedy trial period under rule 3.191(a).
In his motion to dismiss, Palmer argued that he was entitled to immediate discharge because he was not brought to trial for the felony charge within the 175-day speedy trial period. The State argued that Palmer waived speedy trial by filing a motion to continue the misdemeanor charge. Palmer asserted that his motion for a continuance did not waive speedy trial in the misdemeanor case; rather, it was a nullity because the speedy trial period expired before he sought the continuance. The question before the trial court was whether Palmer effectively waived speedy trial for the felony charge by filing a motion to continue after the expiration of the speedy trial period for the misdemeanor charge.
The supreme court has recently answered this question in State v. Nelson, 26 So.3d 570 (Fla.2010). In Nelson, the juvenile defendant was arrested, and the State filed a petition for delinquency against him. Id. at 572. Shortly after the expiration of the juvenile speedy trial period, defense counsel requested and was granted a continuance. The adult felony speedy trial period then expired. A few days later, the State filed an information in felony court with new charges. The State subsequently nol prossed the juvenile charges but then filed a second felony information with the same charges that had been contained in the petition for delinquency. Id.
The defendant filed motions for discharge in both adult felony cases based upon the expiration of the speedy trial periods. The trial court denied the motions based on its determination that the defense continuance waived speedy trial. The defendant then filed petitions for writs of prohibition, and the Fourth District granted the petitions based on its determination that the continuance did not constitute a waiver of speedy trial because it was sought after the speedy trial time had expired. Id. The court held that the continuance was a nullity. The Fourth District certified the following question for review:
Does a motion for continuance made after the expiration of the speedy trial period but ...