final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Bernard I. Bober, Judge; L.T. Case No.
Jo Bondi, Attorney General, Tallahassee, and Kimberly T.
Acuña, Assistant Attorney General, West Palm Beach,
Randall Haas, Fort Lauderdale, for appellee.
State appeals an order discharging appellee, Luis
Born-Suniaga, pursuant to the speedy trial rule, Florida Rule
of Criminal Procedure 3.191. The State charged appellee
within the rule 3.191 speedy trial time period but failed to
notify him of the charges until well after its expiration.
The trial court dismissed the charges without affording the
State the recapture period set forth in the rule. The court
followed this court's opinions in State v.
Morris, 662 So.2d 378 (Fla. 4th DCA 1995), and
Thompson v. State, 1 So.3d 1107 (Fla. 4th DCA 2009),
although recognizing that those cases conflicted with
State v. Jimenez, 44 So.3d 1230 (Fla. 5th DCA 2010).
Having reviewed this case en banc, we recede from Morris,
Thompson, and other cases relying on the Morris
line of reasoning, which deprives the State of the recapture
period under rule 3.191. We conclude that these cases
conflict with both State v. Naveira, 873 So.2d 300
(Fla. 2004), and State v. Nelson, 26 So.3d 570 (Fla.
2010). We align ourselves with Jimenez and reverse
and remand for reinstatement of the charge.
an incident on November 6, 2014, appellee was arrested the
same day for misdemeanor battery in attempting to prevent the
victim from reporting a noise complaint to law enforcement.
Appellee provided his address, posted bond, and was released
on November 7, 2014.
February 6, 2015, ninety-two days after his arrest, the State
filed an information charging appellee with tampering with a
witness in violation of section 914.22, Florida Statutes
(2014), a felony, and misdemeanor battery, on the basis of
the November incident. That same day,
the State filed instructions for the Clerk to issue a
not-in-custody capias as to both counts. On February 11,
2015, the State asked the Broward Sheriff's Office
("BSO") to serve the capias, listing the address
appellee had provided upon his initial arrest. A detective
was assigned to execute the warrant on March 25, 2015. There
is no indication in the record that the detective made any
effort to serve the warrant.
April 15, 2015, the State filed a "no information"
sheet on the original misdemeanor battery charge. Appellee
was notified that the charge had been dismissed and his bond
175-day speedy trial period expired on April 30, 2015.
first became aware of the new charges on November 19, 2015,
well over 175 days after his arrest, through his
co-defendant's counsel. Upon becoming aware of the
charges, appellee did not file a notice of expiration of
speedy trial time. Rather, on November 25, 2015, appellee
moved to discharge, arguing that he was entitled to immediate
discharge because the State was not allowed a fifteen-day
recapture period, as it had not made any effort to notify him
of the charges within the speedy trial period. The State
responded, arguing that because the information was filed
before the expiration of the 175-day period, the State was
entitled to a recapture period. The State further argued that
reasonable efforts were made to serve appellee with the
capias during the speedy trial period, as evidenced by its
communications with BSO.
trial court held an evidentiary hearing on the motion to
discharge. Appellee was the only witness to testify. He
stated that since his initial arrest, he had moved twice, but
had updated his address with the U.S. Postal Service each
time and had his mail forwarded from the original address. He
did not update his address with the Clerk's office.
However, he did not receive any forwarded mail from the
Clerk, much less anything suggesting that there were pending
charges against him. Nothing in the record indicates that the
Clerk's office sent appellee any notice when the
information was filed in February 2015.
testified that he had repeatedly tried to determine whether
the State had filed any new charges against him. On February
20, 2015, after his co-defendant was charged, appellee was
informed by his attorney that there were no charges against
him. He went to the jail later that day when his co-defendant
turned himself in. At the jail, appellee was informed by a
deputy that there were no charges pending against him. Later
that day, appellee encountered other police officers who told
him he was free to go and informed him that there were no
warrants against him. In April 2015, appellee looked his case
up and saw that it was listed as having been
"disposed." Based on this, he was led to believe
there were no charges against him.
State presented no evidence. It did not show that anyone had
attempted to notify appellee of the charges filed. No
clerk's office employee testified that any mailings had
been sent to appellee, and no testimony showed that BSO had
made any attempt to serve appellee.
trial court found that there was no record activity from
appellee in the case file, no notices were ever mailed to
him, and the file "pursuant to the clerk's office
policy was sealed." The court concluded that there was no way
for appellee to find out that this case existed and no effort
to alert him to the fact that charges stemming from the
initial incident were still ongoing. The court noted that it
was bound by Fourth District case law, which conflicts with
Jimenez. Based on this, the court granted
appellee's motion for discharge without allowing the
State the fifteen-day recapture period. The State timely
did before the trial court, the State argues that the court
erred by granting appellee's motion for discharge without
affording the State the opportunity to try him within the
recapture period, where the information was filed within the
speedy trial timeframe, but appellee was not served until
after the expiration of that time. Appellee counters that the
trial court correctly adhered to Fourth District precedent.
We examine rule 3.191, the Florida Supreme Court precedent of
Nelson and Naveira analyzing the rule, and
our own cases. We conclude that our cases are in conflict
with Nelson and Naveira. We therefore
recede from them and agree with Jimenez.
The Speedy Trial Rule
case turns on Florida Rule of Criminal Procedure 3.191, the
speedy trial rule. The interpretation of the rules of
procedure with regard to the right to a speedy trial is a
question of law, subject to de novo review. Nelson,
26 So.3d at 573-74. Rule 3.191 provides that
every person charged with a crime shall be brought to trial .
. . within 175 days of arrest if the crime charged is a
felony. If trial is not commenced within these time periods,
the defendant shall be entitled to the appropriate remedy as
set forth in subdivision (p). The time periods established by