State v. Craven
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2007
STATE OF FLORIDA,
Appellant,
v.
CURT CRAVEN,
Appellee.
No. 4D06-1774
[ May 2, 2007 ]
TAYLOR, J.
The state appeals an order discharging the defendant on speedy trial
grounds. According to the state, the defendant’s pro se notice of
expiration of speedy trial and motion for discharge were nullities because
the defendant was represented by counsel at the time they were filed,
and their later adoption by defense counsel, if approved by the trial
court, should become effective from the date of adoption, not from the
date the pleadings were originally filed pro se by the defendant. We agree
and reverse.
The defendant was convicted of aggravated battery and misdemeanor
battery following a jury trial. We reversed for a new trial based on an
improper jury instruction and issued our mandate on September 16,
2005. On November 14, 2005, the defendant filed an application for
criminal indigent status. On November 30, 2005, the defendant was
declared indigent, and the public defender was appointed to represent
him. On December 23, 2005, the defendant filed a pro se notice of
expiration of speedy trial period. On January 12, 2006, he followed up
with a motion to discharge. On March 3, 2005, the defendant filed a pro
se emergency petition for writ of prohibition in this court. At that point,
the public defender filed a motion in this court seeking to adopt the pro
se emergency petition for writ of prohibition. We issued an order
dismissing the petition “without prejudice to seek relief in the trial court
in the event trial counsel adopts the trial court motion.”
On remand, after the public defender adopted the prior pro se
pleadings, the trial court granted the motion to discharge. The court
reasoned that because the defendant’s motions were subsequently
adopted by counsel, “he avoids treatment of his motions as legal
nullities.”
Under the speedy trial rule, the state had ninety days from the
issuance of our mandate within which to commence the defendant’s new
trial. Fla. R. Crim. P. 3.191(m) (2006). Ordinarily, when the time period
has expired, the defendant files a Notice of Expiration of Speedy Trial
Time, and the state then has a fifteen-day recapture period within which
to bring the defendant to trial or face the defendant’s discharge. Fla. R.
Crim. P. 3.191(p) (2006). The problem in this case is that the defendant
was represented by counsel when he filed his pro se notice of expiration
and motion for discharge.
Because the pro se pleadings did not unequivocally request the
discharge of defendant’s counsel, they were nullities, having no legal
force or effect. Logan v. State, 846 So. 2d 472, 476 (Fla. 2003); Johnson
v. State, 932 So. 2d 1169, 1170 (Fla. 2d DCA 2006); Sams v. State, 849
So. 2d 1172, 1174 (Fla. 3d DCA 2003); Lewis v. State, 766 So. 2d 288,
289 (Fla. 4th DCA 2000); Thompson v. State, 615 So. 2d 737, 741 (Fla.
1st DCA 1993). The defendant argues that because the state did not
move to strike the pro se pleadings, they were not nullities. We reject
this argument, which is unsupported by any authority. Such pleadings
are nullities without regard to whether a motion to strike was filed.
In some situations, defense counsel can adopt and proceed to argue
his client’s pro se filings. The question is whether the adoption of a pro
se filing of speedy trial pleadings can “relate back” in time so as to entitle
a defendant to discharge. We can find no Florida case directly on point.
In Kidd v. State, 855 So. 2d 1165, 1167 (Fla. 5th DCA 2003), which the
trial court cited in its order of discharge, the defendant filed a pro se
motion for a new trial based on improper comment by the prosecutor and
a pro se motion to correct his sentence because of an improper sexual
predator designation. Defense counsel adopted the pro se motion for a
new trial and argued it at the sentencing/motions hearing. The trial
court considered the adopted motion on the merits and the appellate
court determined that the issue was preserved for review. However,
because the opinion in Kidd did not indicate whether the hearing was
held within the ten-day period permitted for new trial motions or note
any timeliness or relation-back concerns, we do not know whether the
court applied a relation-back theory in declining to treat the defendant’s
motion as a nullity.
In any event, we disapprove allowing defense counsel’s attempted
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relation-back of the defendant’s pro se speedy trial pleadings in this case.
To allow such a relation-back would swallow the “nullity” rule by forcing
the state to respond to a pro se “Notice of Expiration of Speedy Trial
Period” as if it had been filed by counsel or risk losing the 15-day
recapture period provided by the criminal procedure rules. We agree
with the state that in this case defense counsel should not be allowed to
adopt the defendant’s pro se speedy trial pleadings so as to completely
defeat the state’s entitlement to the recapture period. We hold that in
the context of pro se speedy trial pleadings, if the trial court permits
defense counsel to adopt the pro se pleadings, the effective date should
be the actual date of adoption, not the date on which the unauthorized
pleadings were filed. This will give the state an opportunity to bring the
defendant to trial within the fifteen-day window and allow the defendant
to enjoy his right to a speedy trial.
Reversed and Remanded.
SHAHOOD and GROSS, JJ., concur.
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*
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Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Cynthia G. Imperato, Judge; L.T. Case No. 02-20778
CF 10 A.
Bill McCollum, Attorney General, Tallahassee, and Daniel P.
Hyndman, Assistant Attorney General, West Palm Beach, for appellant.
Carey Haughwout, Public Defender, and Anthony Calvello, Assistant
Public Defender, West Palm Beach, for appellee.
Not final until disposition of timely filed motion for rehearing
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