FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Pinellas County; Philip J.
Jo Bondi, Attorney General, Tallahassee, and Gillian N.
Leytham, Assistant Attorney General, Tampa, for Appellant.
Jeanine L. Cohen of Cohen & DePaul, P.A., Tampa, for
State appeals the circuit court's order discharging
Edward Drake on speedy trial grounds. We affirm. We write
only to explain why the State is not entitled to a recapture
period under Florida Rule of Criminal Procedure 3.191(p)(3).
record shows that the 175-day speedy trial period began when
Drake was arrested on May 23, 2013,  and therefore ended on
November 14, 2013. The State filed the information on June 6,
2013, within the speedy trial period. But upon filing, the
information was immediately sealed by the Clerk's office.
Neither Drake nor his counsel could access the information.
Drake was still in custody at the time. Several pretrial
hearings were held, making the State aware that Drake was in
custody. Yet Drake was not notified that the information had
been filed. Indeed, defense counsel stated that she checked
the docket for it on a weekly basis, to no avail. She and
Drake did not become aware that it had been filed until it
was unsealed in open court on December 3, 2013, after the
speedy trial period had already expired. Drake moved for
discharge because he had not been brought to trial within the
speedy trial period as required by rule 3.191(a). The State
sought a recapture period under rule 3.191(p)(3). The trial
court correctly granted Drake's motion and found that the
State was not entitled to a recapture period.
well established under Florida law that the State is not
entitled to a recapture period if it fails to file charges
until after the speedy trial time has run. See State v.
Williams, 791 So.2d 1088, 1091 (Fla. 2001); State v.
Clifton, 905 So.2d 172, 176 (Fla. 5th DCA 2005). In
other words, "the [S]tate may not circumvent the purpose
and intent of the speedy trial rule by . . . taking no action
after the defendant is arrested and waiting until after the
speedy trial period has expired to file formal charges."
Clifton, 905 So.2d at 176. This is because, under
these circumstances, "the [S]tate has essentially
abandoned the prosecution and the recapture provisions of the
rule do not apply, with the result that the defendant must be
rule has been applied to require immediate discharge where
actions of the State and the Clerk's office combine to
give the defendant the misimpression that the prosecution had
been abandoned. In Puzio v. State, 969 So.2d 1197
(Fla. 1st DCA 2007), a series of miscommunications between
the State Attorney's office, the Clerk's office, and
the defendant's attorney misled the defendant into
believing that the charges against him had been dropped. The
First District noted that "[w]hile neither the State nor
the Clerk's office may have intended to mislead the
defendant or conceal information from him, the fact remains
that this is what happened." Id. at 1201. To
allow the State a recapture period in this situation would
eviscerate the speedy trial rule because "[n]otifying a
defendant that charges have been filed against him is
essential, not only to his due process rights, but to his
ability to exercise his speedy trial rights."
Id. at 1202. Where a defendant could not have known
that he needed to file a notice of expiration because the
information was concealed from him, immediate discharge is
appropriate. Id.; see also State v.
McCullers, 932 So.2d 373, 375 (Fla. 2d DCA 2006)
("The State's right to recapture must be understood
as linked to the defendant's ability to exercise the
right to file a notice of expiration when the 175-day period
immediate discharge was appropriate because the information
was inaccessible to Drake during the speedy trial period and
he was not notified of the charges against him until after
the speedy trial period had already expired. Under these
circumstances, he could not have known that he needed to file
a notice of expiration. Even though it was the Clerk, not the
State, who sealed the information, the State nevertheless was
aware that Drake was in custody and failed to notify him that
the information had been filed. And regardless of the intent
behind the actions of the Clerk and the State, the result was
the same: the information was concealed from Drake. To allow
the State a recapture period on these facts would defeat the
purpose of rule 3.191.
note that this case is factually distinguishable from
State v. Devard, 178 So.3d 41 (Fla. 2d DCA 2015),
and State v. McCullers, 932 So.2d 373 (Fla. 2d DCA
2006), on which the State relies. In those cases, this court
held that the State was entitled to a window of recapture
where the information had been filed within the speedy trial
period but the defendant had not actually been notified until
after the speedy trial period had expired. Devard,
178 So.3d at 44-45; McCullers, 932 So.2d at 376. But
in both of those cases, the information was accessible to the
defendants during the speedy trial period. They were not
actually notified because they were not in custody and the
State had not located them. They became aware of the charges
only when they were rearrested. Devard, 178 So.3d at
42-43; McCullers, 932 So.2d at 373-74. Here, in
contrast, Drake could not access the information because it
was sealed immediately upon being filed. His attorney was
unaware that the information had been filed, even though she
checked the docket for it on a weekly basis. And because
Drake was in custody since May 23, 2013, he could have easily
been located and notified before the speedy trial period
expired on November 14, 2013, though regrettably he was not.
conclude that the trial court was correct in finding that
Drake was entitled to immediate discharge and the State was
not entitled to a recapture period.
WALLACE and ...