          Supreme Court of Florida
                                   ____________

                                  No. SC12-2229
                                  ____________

                             STATE OF FLORIDA,
                                  Petitioner,

                                         vs.

                                  S.A., A CHILD,
                                    Respondent.

                                [February 13, 2014]

PER CURIAM.

      We review the Fourth District Court of Appeal’s decision in State v. S.A., 96

So. 3d 1133 (Fla. 4th DCA 2012), which the Fourth District certified is in direct

conflict with the Fifth District Court of Appeal’s decision in State v. McFarland,

747 So. 2d 481 (Fla. 5th DCA 2000), rev. denied, 767 So. 2d 458 (Fla. 2000),

regarding how the speedy trial rule’s recapture window should be calculated. 1

Based on the plain language of the speedy trial rule, we approve the Fifth District’s

decision in McFarland calculating the recapture window as two separate 5- and 10-




      1. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
day time periods and quash the Fourth District’s decision in S.A. calculating the

window as a single 15-day period.

                                I. BACKGROUND

      On Tuesday, September 27, 2011, S.A. filed a notice of expiration of speedy

trial and a motion seeking a discharge under the speedy trial rule. S.A.’s motion

triggered the speedy trial rule’s recapture window, which provides:

             No later than 5 days from the date of the filing of a motion for
      discharge, the court shall hold a hearing on the motion and, unless the
      court finds that one of the reasons set forth in subdivision (d) exists,
      shall order that the respondent be brought to trial within 10 days. If
      the respondent is not brought to trial within the 10-day period through
      no fault of the respondent, the respondent shall be forever discharged
      from the crime.

Fla. R. Juv. P. 8.090(m)(3) (emphases added).

      One week later, on Tuesday, October 4, the trial court held a hearing on

S.A.’s motion and set trial for 10 days later (Friday, October 14). On the day of

trial, which was 17 days after S.A. filed his motion, S.A. argued that he was

entitled to a discharge because the State failed to bring him to trial within the 15-

day recapture window. The State argued that the recapture window is not a single

15-day period but, instead, consists of two separate 5- and 10-day periods that are

calculated pursuant to the computation of time rule. Accordingly, the State argued

that it had brought S.A. to trial within the recapture window since the hearing was

held within 5 days of the date S.A. filed his motion—excluding the intervening



                                         -2-
weekend and legal holiday (Jewish New Year) as required by the time computation

rule—and since S.A. was brought to trial within 10 days of the hearing. 2 The trial

court discharged S.A.

      On appeal, the Fourth District affirmed and held that the recapture window

is “ ‘one fifteen day time period’ ” which requires the State “to bring a defendant

to trial within fifteen days of the defendant’s filing of the notice of expiration”

regardless of how the deadline for the 5-day hearing is calculated or when the

hearing is held. S.A., 96 So. 3d at 1135 (quoting State v. J.G., 807 So. 2d 748, 749

(Fla. 4th DCA 2002)). However, the Fourth District acknowledged that the Fifth

District calculates the recapture window “as two separate but interrelated [5- and

10-day] time periods” and certified conflict with McFarland. Id.

                                   II. ANALYSIS

      Based on the plain language of the speedy trial rule, we approve the Fifth

District’s decision in McFarland and quash the Fourth District’s decision below. 3


      2. To calculate the deadline for the 5-day hearing, the State relied on the
computation of time rule which provides that where the number of days for
performing an act is less than 7, “intermediate Saturdays, Sundays, and legal
holidays shall be excluded” in computing the deadline. Fla. R. J. Admin.
2.514(a)(3); see also Fla. R. Juv. P. 8.180(a) (“Computation of time shall be
governed by Florida Rule of Judicial Administration 2.514[.]”).

       3. Our standard of review is de novo. See State v. Nelson, 26 So. 3d 570,
573-74 (Fla. 2010) (“[T]he interpretation of the rules of procedure with regard to
the right to a speedy trial [is] a question of law subject to de novo review[.]”).
Further, though the Fifth District applied the adult speedy trial rule in McFarland,

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See Brown v. State, 715 So. 2d 241, 243 (Fla. 1998) (requiring that an

“unambiguous” rule “be accorded its plain and ordinary meaning”).

      The speedy trial rule plainly provides for a recapture window that is

comprised of up to 5 days for the hearing followed by 10 days for the trial; it never

mentions a 15-day period. 4 See Fla. R. Juv. P. 8.090(m)(3); Fla. R. Crim. P.

3.191(p)(3); see also McFarland, 747 So. 2d at 483 (holding that the State “was not

required to bring [the defendant] to trial within fifteen days of the filing of his

motion” for discharge but was, instead, required “to bring [him] to trial within ten

days of the date of the hearing on the motion”). And, under the computation of

time rule, intervening weekends and legal holidays are excluded in calculating the

deadline for the 5-day hearing. See Fla. R. Jud. Admin. 2.514(a)(3); see also

Baxter v. Downey, 581 So. 2d 596, 599 (Fla. 2d DCA 1991) (explaining that the

the adult rule is nearly identical to the juvenile rule at issue here, and rule 2.514 is
used to compute time under both rules. Compare Fla. R. Crim. P. 3.191(p)(3), and
Fla. R. Crim. P. 3.040, with Fla. R. Juv. P. 8.090(m)(3), and Fla. R. Juv. P. 8.180.
Therefore, the recapture window is calculated the same under both rules. See
Nelson, 26 So. 3d at 575 (“[T]he Rules of Juvenile Procedure provide a right to a
speedy trial with procedures analogous to the adult speedy trial rule[, including] a
recapture provision that mirrors its adult counterpart.”) (citation omitted).

       4. We recognize that a committee note to the adult speedy trial rule provides
that the “intent” of the recapture window is “to provide the state attorney with 15
days within which to bring a defendant to trial from the date of the filing of the
motion for discharge.” Fla. R. Crim. P. 3.191 committee notes (1984). However,
“committee notes are only persuasive authority and are not binding; it is the intent
of this Court in promulgating a rule of procedure, as expressed in the rule itself,
that governs its interpretation.” D.K.D. v. State, 470 So. 2d 1387, 1389 (Fla.
1985).

                                          -4-
computation of time rule is used to calculate the recapture window’s “two separate

time periods”); Ricci v. Parker, 518 So. 2d 284, 287 (Fla. 2d DCA 1987)

(concluding that reading the speedy trial rule together with the time computation

rule “effectively requires a discharge hearing in five business days”), rev. denied,

519 So. 2d 988 (Fla. 1988).

      Accordingly, because the State complied with the recapture window’s two

separate time periods in this case, it timely brought S.A. to trial 17 days after he

filed his motion for discharge. See State v. Thomas, 659 So. 2d 1322, 1323 (Fla.

3d DCA 1995) (“In some cases[,] the total time from the filing of the notice of

expiration to the last day of the window period will be less than fifteen days. In

other cases, it will be more than fifteen days because the calculation of the initial

five-day period excludes intervening weekends and holidays.”) (Cope, J., specially

concurring). Therefore, S.A. was not entitled to a discharge.

                                III. CONCLUSION

      For the above reasons, we quash the Fourth District’s decision below and

remand to the trial court for further proceedings. We also approve the Fifth

District’s decision in McFarland and the Second District’s decisions in Baxter and

Ricci because they recognize that the recapture window is comprised of two

separate time periods.

      It is so ordered.



                                         -5-
POLSTON, C.J., and PARIENTE, LEWIS, CANADY, LABARGA, and PERRY,
JJ., concur.
PARIENTE, J., concurs with an opinion, in which PERRY, J., concurs.
QUINCE, J., dissents.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.


PARIENTE, J., concurring.

      I concur in the majority opinion because I agree that the plain language of

the speedy trial rule dictates that the recapture window be calculated as two

separate 5- and 10-day time periods, since the rule itself does not mention the

application of a single 15-day period. However, in light of the fact that a strict

application of the separate 5- and 10-day time periods set forth in the rule can

result in a trial being set more than fifteen days from the date the defendant files a

motion for discharge—as in this case, where the defendant was not brought to trial

until seventeen days after he filed his motion for discharge—I write separately to

express my view that this Court should amend the speedy trial rule in order to give

effect to the original intent of the rules committee to provide for a single 15-day

recapture window.

      This view—that the speedy trial rule was intended to provide the State with

a 15-day recapture window—is supported by this Court’s prior opinion in State v.

Salzero, 714 So. 2d 445, 447 (Fla. 1998), where the Court reasoned that a “strict

adherence to the five and ten-day requirements would not comport with the clear

                                         -6-
intent of [the rule] as evident from the committee notes to the 1984 amendment of

the rule.”

      Specifically, the committee notes to the adult speedy trial rule provide:

             The intent of [the recapture window] is to provide the state
      attorney with 15 days within which to bring a defendant to trial from
      the date of the filing of the motion for discharge. This time begins
      with the filing of the motion and continues regardless of whether the
      judge hears the motion.

Fla. R. Crim. P. 3.191 committee notes (1984). The notes also explain why the

committee recommended fifteen days as the appropriate time period for the

recapture window:

      The total 15-day period was chosen carefully by the committee, the
      consensus being that the period was long enough that the system
      could, in fact, bring to trial a defendant not yet tried, but short enough
      that the pressure to try defendants within the prescribed time period
      would remain. In other words, it gives the system a chance to remedy
      a mistake; it does not permit the system to forget about the time
      constraints. It was felt that a period of 10 days was too short, giving
      the system insufficient time in which to bring a defendant to trial; the
      period of 30 days was too long, removing incentive to maintain strict
      docket control in order to remain within the prescribed time periods.

Id.

      Relying on these committee notes, this Court determined in Salzero that “a

violation of the five and ten-day periods provided in [the speedy trial rule] is

harmless if a defendant is actually brought to trial within fifteen days of filing his

notice of expiration.” Salzero, 714 So. 2d at 447. Thus, although the defendant in

Salzero was brought to trial more than ten days after the trial court held its initial


                                          -7-
hearing, this Court deemed the error harmless because the defendant was brought

to trial within fifteen days of the filing of the motion for discharge—a result that

accorded with the clear intent of the drafters who created the rule. See id.

        Although the juvenile rule at issue in this case does not contain a

comparable provision in its committee notes, this Court has interpreted the nearly

identical language of the juvenile and adult rules consistently. See State v. Nelson,

26 So. 3d 570, 575 (Fla. 2010) (“[T]he rules of Juvenile Procedure provide a right

to a speedy trial with procedures analogous to the adult speedy trial rule . . .

includ[ing] a recapture provision that mirrors its adult counterpart.”). Thus, the

committee notes to the adult speedy trial rule are equally persuasive in discerning

the original intent behind the juvenile speedy trial rule.

      Given that the committee notes focus on a single 15-day time period that is

not referenced anywhere in the rule, both courts and commentators have urged this

Court to amend the speedy trial rule in order to reflect the original intent of the

drafters who created the rule. For example, just three years after the speedy trial

rule was amended to include the recapture window, the Second District Court of

Appeal urged this Court to revisit the rule. See Ricci v. Parker, 518 So. 2d 284,

286, 287 & n.2 (Fla. 2d DCA 1987). The Second District, noting the conflict

between the plain language of the rule and the drafters’ clear intent, as evidenced

in the committee notes to the rule, stated that it was aware of “the possibility that



                                         -8-
the rule as presently worded affords potential for abuse, or at least for laxity,” but

concluded that remedying this defect was “a matter for the attention of the rules

committee and the supreme court.” Id. at 287.

      Similarly, Professor John Yetter, who analyzed the conflict between the

plain language of the rule and the intent of the rule as reflected in its commentary,

concluded that this Court should resolve this conflict by restricting the recapture

window to “15 days following the filing of a meritorious motion for discharge by

the defendant.” John F. Yetter, Florida’s New Speedy Trial Rule: “The Window of

Recapture”, 13 Fla. St. U. L. Rev. 9, 12, 29 (1985). In my opinion, such an

amendment would effectuate the clear intent of the drafters who created the rule

and would address the concerns cogently articulated by the Second District.

      Accordingly, I conclude that this Court should amend the speedy trial rule

and that the amended version of the rule should, in my view, provide for a 15-day

time period, initiated by the filing of the defendant’s motion for discharge, during

which the State could bring the defendant to trial, but would not allow the

defendant to be brought to trial after the expiration of this single 15-day time

period. Until the rule is amended, however, the plain language of the current rule,

which nowhere mentions a 15-day period, must govern. I therefore concur in the

majority, but urge this Court to consider amending the speedy trial rule to




                                         -9-
effectuate the original intent of the drafters, who carefully chose fifteen days as the

appropriate time period of the recapture window.

PERRY, J., concurs.

Application for Review of the Decision of the District Court of Appeal - Certified
Direct Conflict of Decisions

      Fourth District – Case No. 4D11-4230

      (Palm Beach)

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Celia Terenzio, Chief
Assistant Attorney General, and Melynda L. Melear, Assistant Attorney General,
West Palm Beach, Florida,

      for Petitioner

Anthony B. Britt of The Britt Law Firm, P.L., Miami, Florida,

      for Respondent




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