Lovelace v. State
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2005
JEFFREY LOVELACE,
Petitioner
v.
STATE OF FLORIDA,
Respondent.
No. 4D05-746
[July 27, 2005]
KLEIN, J.
We withdraw our previous opinion filed on June 1, 2005 and replace it
with this opinion.
The issue presented by this petition for writ of prohibition is whether a
violation of the speedy trial rule for a misdemeanor DUI charge precludes
a felony DUI charge based on the same incident and prior DUI
convictions. We hold that it does and certify conflict with State v.
Jackson, 784 So. 2d 1229 (Fla. 1st DCA 2001).
Florida Rule of Criminal Procedure 3.191(a) provides that a person
charged with a misdemeanor must be brought to trial within 90 days of
arrest and that a person charged with a felony must be brought to trial
within 175 days of arrest. Under rule 3.191(p) a defendant, after the
expiration of the proscribed time period, may file a “notice of expiration of
speedy trial time” and, with some exceptions not applicable here, must
be brought to trial within 15 days or “forever discharged from the crime.”
D efendant was arrested and issued a citation for misdemeanor DUI on
August 11, 2004. A few days after the ninety day speedy trial period
expired, defendant filed a notice of expiration of speedy trial time on
November 15, 2004, in county court. The state then filed a “no
information” on November 19, 2004. Defendant was not brought to trial
and moved for discharge on November 30, 2004, which was the end of
the fifteen day recapture period.
The next day, on December 1, 2004, the state filed a felony DUI charge
in circuit court based on the same incident and prior DUI convictions.
See § 316.193(2)(b)1, Fla. Stat. (2004). The county court in which the
misdemeanor charge had been pending held a hearing on defendant’s
motion for discharge on December 6, 2004 and concluded it had no
jurisdiction to grant the motion because of the “no information” filed by
the state.
A “no information,” which is synonymous with “no action,” is filed by a
prosecutor for the purpose of letting a person who has been arrested
know that an information will not be filed or an indictment will not be
sought. Purchase v. State , 866 So. 2d 208 (Fla. 4th DCA 2004). Because
the charging document in this case was the traffic citation, Florida Traffic
Court Rule 6.040(b), and there was no reason to inform the defendant
that an information would not be filed, we assume that the state
intended to nol pros the misdemeanor when it filed the “no information.”
The county court’s ruling that it had no jurisdiction because of the filing
of the “no information” is consistent with the conclusion that the state
intended to nol pros. In any event it makes no difference what the state
intended by filing the “no information.”
After the county court concluded it had no jurisdiction to grant the
motion for discharge, defendant filed a motion for discharge in circuit
court, where the felony information was pending, which was denied. His
motion was based on Sta te v. Woodruff, 676 So. 2d 975 (Fla. 1996), in
which it was held that the discharge of a misdemeanor DUI in county
court based on the speedy trial rule would preclude a felony prosecution
based on the same incident and prior DUI convictions. Defendant seeks
a writ of prohibition, which is the remedy for the improper denial of the
right to a speedy trial. Lowe v. Price, 437 So. 2d 142 (Fla. 1983).
Under rule 3.191(p), if a defendant is not brought to trial within fifteen
days after filing a notice of expiration of speedy trial time, the defendant
must be “forever discharged from the crime.” In the present case
defendant was not brought to trial within fifteen days of the filing of his
notice of expiration of speedy trial period, but the state argues that the
speedy trial period under these facts is the 175 day period for felonies,
not the 90 days for misdemeanors, relying on State v. Jackson, 784 So.
2d 1229 (Fla. 1st DCA 2001).
In Jackson, the defendant was arrested on October 21, 1999 and
charged in county court with a DUI, but on January 10, 2000, the state
entered a nol pros. On January 25, 2000, ninety-six days after his
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arrest, the defendant filed his notice of expiration of the ninety day
speedy trial period. The state then filed an information in circuit court
on February 3, 2000, charging felony DUI based on the same incident
and prior DUI convictions. Defendant, who had not been brought to trial
within fifteen days of his notice of expiration of speedy trial period,
obtained a county court order granting his motion for discharge of the
misdemeanor on March 27, 2000. The circuit court then ruled that the
discharge of the underlying misdemeanor DUI made it impossible for the
state to prove felony DUI under State v. Woodruff, 676 So. 2d 975 (Fla.
1996), and dismissed the information.
The state appealed and the first district reversed, holding that after the
state nol prossed the misdemeanor DUI in county court, the county court
no longer had jurisdiction to grant the motion for discharge based on the
violation of the speedy trial rule. We are unable to reconcile that
reasoning with State v. Agee, 622 So. 2d 473, 475 (Fla. 1993), in which
our supreme court held that “when the State enters a nol pros, the
speedy trial period continues to run and the State may not refile charges
based on the same conduct after the period has expired.” In addition,
rule 3.191(o) states:
The intent and effect of this rule shall not be avoided by the
state by entering a nolle prosequi to a crime charged and by
prosecuting a new crime grounded on the same conduct or
criminal episode or otherwise by prosecuting new and
different charges based on the same conduct or criminal
episode, whether or not the pending charge is suspended,
continued, or is the subject of entry of a nolle prosequi.
The Jackson panel pointed out that, under rule 3.191(f), when a felony
and misdemeanor are consolidated for trial in circuit court, the longer
felony speedy trial applies to the misdemeanor charge. That rule,
however, was not applicable in Jackson, because the misdemeanor
charge was pending in county court, and not consolidated with a felony
information pending in circuit court. The state’s reliance on rule 3.191(f)
in the present case is misplaced for the same reason.
In Jackson, as we noted earlier, the state filed the information in circuit
court charging Jackson with a felony after the ninety day speedy trial
period ran on the misdemeanor, but before the fifteen day window for
trial expired. The holding of Jackson that this was sufficient to invoke
the 175 day speedy trial period for felonies is in conflict with Williams v.
State, 622 So. 2d 477 (Fla. 1993), decided at the same time as Agee, and
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holding that recharging the defendant during the window period is too
late. The speedy trial period is ninety days, and does not include the
fifteen day window. P.S. v. State , 658 So. 2d 92 (Fla. 1995) (applying
Agee and Williams to rule 8.090, the speedy trial rule for juveniles).
We conclude that, under Agee and rule 3.191(o), the county court
should have granted defendant’s motion for discharge of the
misdemeanor DUI based on the expiration of the speedy trial period.
This leaves the state unable to prosecute defendant for felony DUI, which
requires a conviction on the misdemeanor charged in this case and two
prior DUI convictions. Woodruff, 676 So. 2d at 977.
We therefore grant the petition for writ of prohibition and certify direct
conflict with State v. Jackson, 784 So. 2d 1229 (Fla. 1st DCA 2001).
POLEN and FARMER, JJ., concur.
*
*
*
Petition for writ of prohibition to the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; John J. Murphy, III, Judge; L.T. Case
No. 04-19537 CF10A.
Charles D. Barnard of Charles D. Barnard, P.A., Fort Lauderdale, for
petitioner.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher
Zibura, Assistant Attorney General, West Palm Beach, for respondent.
Not final until disposition of timely filed motion for rehearing.
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