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State v. Born-Suniaga

Florida Court of Appeals, Fourth District

May 3, 2017


         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Bernard I. Bober, Judge; L.T. Case No. 15-1694 CF10A.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach, for appellant.

          A. Randall Haas, Fort Lauderdale, for appellee.

         EN BANC

          Warner, J.

         The 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.


         Following 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.

         On 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.[1] 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.

         On 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 discharged.

         The 175-day speedy trial period expired on April 30, 2015.

         Appellee 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.

         The 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.

         Appellee 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.

         The 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.

         The 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."[2] 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 appealed.


         As it 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.

         (A) The Speedy Trial Rule

         This 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 ...

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