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State v. Telucien

Florida Court of Appeals, Fourth District

August 16, 2017

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

         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.

          ON MOTION FOR REHEARING

          PER CURIAM.

         We grant the state's motion for rehearing, withdraw our prior opinion, and substitute the following in lieu thereof.

         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, which was filed outside of the 175-day speedy trial but arose from the same criminal episode. We agree and reverse 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 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.

         On 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.

         The 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.

         The 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).

         Florida 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 crime. Id.

         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.

         In its written order[1] 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 as follows:

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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