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.
ON MOTION FOR REHEARING
grant the state's motion for rehearing, withdraw our
prior opinion, and substitute the following in lieu thereof.
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, which was filed outside of the 175-day speedy trial
but arose from the same criminal episode. We agree and
reverse 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
alleged texting relationship and physical contact with a
minor who attended the summer camp where the defendant worked
as a counselor. On August 27, 2014, the state filed a
"no information" on both charges. 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 battery charge.
January 29, 2015, the defendant requested and received a
continuance. On August 18, 2015, the state
"up-filed" or amended its information, charging the
defendant with a felony count of lewd and lascivious conduct.
The 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.
defendant filed a motion to discharge pursuant to Florida
Rule of Criminal Procedure 3.191(a), contending that he was
entitled to discharge because the information was filed 384
days after the defendant's initial arrest and 209 days
after the expiration of the 175-day speedy trial period
established in rule 3.191. 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 determined
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 ruled that the state was
not entitled to the recapture period and granted the
defendant's motion for speedy trial discharge.
standard of review of a trial court's order discharging a
defendant on speedy trial grounds is de novo. State v.
Nelson, 26 So.3d 570, 573-74 (Fla. 2010).
Rule of Criminal Procedure 3.191 is the procedural mechanism
by which a defendant can assert the right to a speedy trial.
The 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 or she is entitled to enforce the right to a
speedy trial by filing a Notice of Expiration of Speedy
Trial. Fla. R. Crim. P. 3.191(a) & (p). The notice
triggers the requirement that the court hold a hearing within
five (5) days. Fla. R. Crim. P. 3.191(h) & (p)(3). If the
court determines that none of the reasons set forth in rule
3.191(j) exist to justify 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
issue in this case is whether the state is entitled to a
recapture period in the felony lewd and lascivious conduct
case where the defendant's waiver of his speedy trial
rights in the related misdemeanor case occurred after the
175-day period for filing a felony charge.
written order granting the
defendant's motion for discharge, the trial court
concluded that, because the state failed to file felony
charges until 384 days after his arrest, and because the
defendant did not waive his speedy trial rights until after
the 175th day, the post-expiration continuance was a nullity.
In so ruling, the court relied on a "trilogy of Florida
Supreme court cases, " which addressed the effect of the
state's failure to file charges before expiration of the
speedy trial period upon the state's right to the
recapture provisions. See State v. Agee, 622 So.2d
473 (Fla. 1993); Genden v. Fuller, 648 So.2d 1183
(Fla. 1994); State v. Williams, 791 So.2d 1088 (Fla.
2001). The trial court summarized the holding in these cases
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 ...