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State v. Telucien

Florida Court of Appeals, Fourth District

May 10, 2017

STATE OF FLORIDA, Appellant,
v.
JOHN TELUCIEN, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Raag Singhal, Judge; L.T. Case No. 15-10630 CF10A.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellant.

          Roger Cabrera of Roger Cabrera, P.A., Miami, for appellee.

          Per Curiam.

         The state appeals from a final order granting the defendant's motion for speedy trial discharge. The state argues that the defendant's motion for continuance on a misdemeanor charge waived his right to a speedy trial on the felony charge filed after the expiration of the speedy trial period. We disagree and affirm the discharge order.

         The defendant was arrested on July 30, 2014, on a complaint charging him with one count of felony child abuse and one count of misdemeanor battery. The charges stemmed from his texting relationship and physical contact with a minor who attended the summer camp where he was a counselor. On August 27, 2014, the state filed a "no information" on both charges. Then, on October 27, 2014-just one day before the expiration of the speedy trial period for a misdemeanor-the state filed an information as to the misdemeanor charge.

         On January 29, 2015, 93 days after the speedy trial period expired for a misdemeanor and eight days after the period expired for a felony, the trial court granted a defense continuance on the misdemeanor charge.

         On August 18, 2015, 384 days after the defendant's initial arrest, the state "up-filed" or amended its information, charging the defendant with a felony count of lewd and lascivious conduct. This new felony charge arose from the same conduct for which the defendant was initially arrested, but it was not filed until 209 days after the speedy trial period for a felony had expired. About a month later, the state entered a nolle prosequi on the misdemeanor charge.

         The defendant moved for a speedy trial discharge on the felony charge, pursuant to Florida Rule of Criminal Procedure 3.191(a). The state opposed the motion, arguing that the defendant's prior continuance and speedy trial waiver in the misdemeanor case waived his speedy trial rights in the felony case as well. The trial court, however, ruled that, because the defendant did not waive his speedy trial rights until after the 175-day speedy trial period for a felony had expired, the post-expiration continuance was a nullity. Accordingly, the court granted the motion for speedy trial discharge. We agree with the trial court's reasoning and ruling in the well-written order[1] below:

ORDER GRANTING DEFENDANT'S MOTION FOR DISCHARGE
. . .
The applicable speedy trial rule provides that a defendant must be brought to trial within ninety (90) days of being arrested if the crime charged is a misdemeanor, and within 175 days of being arrested if the crime charged is a felony. Fla. R. Crim. P. 3.191(a). If the defendant is not tried within these time frames, he is entitled to enforce his speedy trial right by filing a notice of expiration of speedy trial. This triggers the requirement that the court hold a hearing on the notice within five (5) days. Fla. R. Crim. P. 3.191(h) and (p)(3). If the court determines that none of the reasons set forth in Florida Rule of Criminal Procedure 3.191(j) exist to justify the delay in bringing the defendant to trial, the court must order that the defendant be brought to trial within ten (10) days. Fla. R. Crim. P. 3.191(p)(3). Failure of the State to bring the defendant to trial within the recapture period entitles defendant to discharge from the crime. Fla. R. Crim. P. 3.191(p)(3) . . .
The Florida Supreme Court in State v. Agee, 622 So.2d 473 (Fla. 1993), addressed the effect of a nolle prosequi on the speedy trial requirements. The court noted that allowing the State to unilaterally toll the running of the speedy trial period by entering a nolle prosequi, would eviscerate the speedy trial rule. It would make it possible for a prosecutor with a weak case to enter a nolle prosequi while strengthening the case and refiling the "charges based on the same criminal episode months or even years later, thus effectively denying an accused the right to a speedy trial." Id. at 475. The court held that "when the State enters a nol pros ...

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