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


                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT

STATE OF FLORIDA,                            )
                                             )
              Appellant,                     )
                                             )
v.                                           )              Case No. 2D14-5053
                                             )
TODD J. MEYERS,                              )
                                             )
              Appellee.                      )
                                             )

Opinion filed November 4, 2015.

Appeal from the Circuit Court for Pinellas
County; Chris Helinger, Judge.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Cornelius C. Demps,
Assistant Attorney General, Tampa,
for Appellant.

Ricardo Rivera of Law Office of Carlson &
Meissner, Clearwater, for Appellee.


CRENSHAW, Judge.


              On May 18, 2014, after showing all the telltale signs of inebriation while

behind the wheel of his car, Todd Meyers was stopped by police. He failed field

sobriety tests and refused any breath tests. He was then arrested for felony driving

under the influence of alcohol (DUI) after the officer noted, and placed directly on the
traffic citation, Meyers' three prior DUIs. In the same citation, Meyers was charged with

a misdemeanor for his failure to submit to intoxication testing. The next day, the State

filed the traffic citation in county court and on July 28, filed an information in the circuit

court charging a felony for the DUI and a misdemeanor for Meyers' failure to take the

breath test.

               The misdemeanor speedy trial window closed on August 16. Meyers filed

a notice of expiration of speedy trial in both courts on September 15, and ultimately the

circuit court granted the discharge on both counts; the State appeals. Because the

court erred in concluding the DUI was governed by the misdemeanor 90-day clock

rather than the felony 175-day clock, we reverse the order of discharge as to the

felony.1

               Meyers and the circuit court lumped this case in with many other of its ilk

in which felony DUI based on prior convictions is charged. However, a felony is a felony

is a felony, and in this case, the DUI was never anything but a felony. Florida Rule of

Criminal Procedure 3.191(a) states, in pertinent part, "every person charged with a

crime shall be brought to trial within 90 days of arrest if the crime charged is a

misdemeanor, or within 175 days of arrest if the crime charged is a felony." It is

undisputed that the State charged Meyers in the circuit court by information with felony

DUI for a fourth lifetime DUI within the 90-day misdemeanor speedy trial window. The

State never filed a nolle prosequi in the county court case or moved to consolidate the

proceedings. Notably, the traffic citation first filed in the county court reflected the three




               1
                   As to the misdemeanor count, we affirm on the record before us.


                                              -2-
prior DUIs; there is no credible claim that Meyers was unaware he was being charged

with felony DUI.

              In this case, the court granted Meyers a discharge on the felony DUI on

speedy trial grounds. This was error. The felony here was always a felony: the officer

who wrote the citation had already concluded that Meyers had committed DUI and had

already checked Meyers' prior convictions to know that the offense was Meyers' fourth

DUI, a third-degree felony. See § 316.193(2)(b)(3), Fla. Stat. (2013); State v. Woodruff,

676 So. 2d 975, 977 (Fla. 1996). The court correctly noted the elements of felony DUI

based on prior convictions: (1) a DUI and (2) prior convictions. See Woodruff, 676 So.

2d at 977; see also Fla. Std. Jury Instr. (Crim.) 28.2 (defining elements of DUI and

providing that when proven, an additional instruction is required for element of prior

convictions). But the court erred in concluding that the pending DUI charge was

governed by the misdemeanor speedy trial clock. While the underlying element of DUI

for felony and misdemeanor DUI is the same, the State did not have to prove

misdemeanor DUI plus prior convictions such that the DUI would be governed by the

misdemeanor speedy trial clock. See Woodruff, 676 So. 2d at 977. Rather, the State

had to prove one offense—felony DUI—of which simple DUI is merely one element.

See Fla. Std. Jury Instr. (Crim.) 28.2. Thus, the proceedings were governed by the

felony clock and not the misdemeanor clock.

              The circuit court relied in part on Brady v. State, 934 So. 2d 659, 662 (Fla.

2d DCA 2006). However, Brady is distinguishable. In Brady, the defendant was

charged with misdemeanor DUI and separately with felony drug charges. Id. at 661.

There, the speedy trial clock ran on the DUI because it was governed by the




                                           -3-
misdemeanor clock and not the felony clock based on the State's failure to properly

consolidate the DUI with the felony drug charges. Id. at 662; see Fla. R. Crim. P.

3.191(f) ("When a felony and a misdemeanor are consolidated for disposition in circuit

court, the misdemeanor shall be governed by the same time period applicable to the

felony." (emphasis added)). But here, Meyers was charged with felony DUI; he was

never charged with misdemeanor DUI. Thus, unlike in Brady, Meyers' offense was

governed by the felony speedy trial clock. Therefore, Meyers was improperly

discharged on speedy trial grounds as to the felony, and we reverse that portion of the

circuit court's order.

               Reversed in part; affirmed in part.


MORRIS, J., Concurs.
SILBERMAN, J., Concurs in result only.




                                            -4-
