FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
appeal from the Circuit Court for Baker County. Aymer L.
Thomas, Public Defender, and Steven L. Seliger, Assistant
Public Defender, Tallahassee, for Appellant.
Jo Bondi, Attorney General, and Tayo Popoola, Assistant
Attorney General, Tallahassee, for Appellee.
criminal appeal, Appellant contends that the trial court
erred in denying his motion for discharge because the amended
information filed after the expiration of the speedy trial
period charged him with a new offense. We affirm for the
reasons that follow.
October 2015, Appellant was stopped for a traffic infraction.
He was arrested after a consensual search of his pockets
resulted in the discovery of $1195 in cash, 46 small plastic
baggies, and a bag containing five grams of a white powdery
substance. A field test of the substance "appeared to
test positive" for cocaine, but the substance was
"sent to FDLE for verification."
March 2016, Appellant was charged with possession of cocaine
with the intent to sell within 1000 feet of a school in
violation of section 893.13(1)(c)1., Florida Statutes (2015)
(count I) and possession of drug paraphernalia-the small
plastic baggies (count II). Appellant did not waive the
speedy trial period.
2016, after the speedy trial period expired, the state filed
an amended information reducing the charge in count I to
possession of a controlled substance in violation of section
893.13(6)(a) because it was determined by the FDLE testing
that the white powdery substance was pyrrolidinovalerophenone
rather than cocaine. The amended information reasserted count
II as originally charged.
thereafter filed a motion for discharge on the ground that
the amended information charged him with a new offense after
the expiration of the speedy trial period. At the hearing on
the motion, defense counsel argued that the amendment to
count I after the speedy trial period was "inherently
prejudicial" to Appellant. But, when the trial court
asked defense counsel whether the amended information
"change[s], in any way, how you intend to defend th[e]
case, whether the substance turns out to be cocaine or
whether it turns out to be PVP, " defense counsel
candidly responded "[P]robably not, Your Honor."
The court denied the motion for discharge.
then entered a no contest plea reserving the right to appeal
the denial of his motion for discharge. The trial court
accepted the plea and sentenced Appellant to 18 months in
prison on count I and time served-four days-on count II. This
Court has explained that "although the state may amend
an information after the speedy trial time expires, the state
may not circumvent the intent and effect of the speedy trial
rule by lying in wait until the speedy trial time expires and
then amending an existing information in such a way that
results in the levying of new charges (if those new
charges arise from the same facts and circumstances giving
rise to the original charge)." Pezzo v. State,
903 So.2d 960, 962 (Fla. 1st DCA 2005) (emphasis in
original). "A 'new' offense is one that contains
an element that the originally charged offense did not
contain." McDuffie v. State, 135 So.3d 317, 320
(Fla. 1st DCA 2012) (citing State v. D.A., 939 So.2d
149, 153 (Fla. 5th DCA 2006)); see also Whitehall v.
State, 81 So.3d 599, 604 (Fla. 2d DCA 2012) (reversing
judgment and sentence for crime charged in an amended
information filed after expiration of the speedy trial period
during the recapture period and stating that the
"recapture period provides a safe harbor for the State
on a charge it has already levied, not on a new greater
offense arising from the same criminal episode")
Appellant was not charged with a "new" offense, as
described in the cases cited above. The offense charged in
count I of the amended information is a necessarily-included
lesser offense of the offense charged in count I of the
original information. See Fla. Std. Jury Instr.
(Crim.) 25.6 (2015) (listing Possession of a Controlled
Substance as a category 1 lesser-included offense of
Possession of a Controlled Substance with Intent to Sell in
Specified Locations). As such, it does not contain any
elements that the originally-charged offense did not contain.
See generally Brown v. State, 206 So.2d 377, 381-82
(Fla. 1968) (explaining that necessarily-included offenses
are those that are "an essential aspect of the major
offense, " meaning that "the burden of proof of the
major crime cannot be discharged, without proving the lesser
crime as an essential link in the chain of evidence").
even if the charge alleged in count I of the amended
information was considered a "new" offense because
it specified a different controlled substance than was
specified in the original information, we would still affirm
because Appellant failed to allege or establish any specific
prejudice resulting from this change. See State v.
Mulvaney, 200 So.3d 93, 96 (Fla. 5th DCA 2015) ("An
amendment is generally permissible . . . when it 'merely
clarifies some detail of the existing charge and could not
reasonably have caused the defendant any
prejudice.'") (quoting Green v. State, 728
So.2d 779, 780 (Fla. 4th DCA 1999)); State v.
Clifton, 905 So.2d 172, 178 (Fla. 5th DCA 2005)
(affirming dismissal of an entirely new charge contained in
an amended information filed after the expiration of the
speedy trial period and explaining that "the central
inquiry is whether the defendant was prejudiced by the
amended information"); cf. Wright v. State, 41
So.3d 924, 926 (Fla. 1st DCA 2010) (reversing trial