final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Raag Singhal, Judge; L.T. Case No. 15-10630
Jo Bondi, Attorney General, Tallahassee, and Matthew Steven
Ocksrider, Assistant Attorney General, West Palm Beach, for
Cabrera of Roger Cabrera, P.A., Miami, for appellee.
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.
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
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
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
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 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 ...