          Supreme Court of Florida
                                   ____________

                                   No. SC17-1014
                                   ____________

                             LUIS BORN-SUNIAGA,
                                   Petitioner,

                                         vs.

                              STATE OF FLORIDA,
                                  Respondent.

                                  October 15, 2018

POLSTON, J.

      We review the decision of the Fourth District Court of Appeal in State v.

Born-Suniaga, 219 So. 3d 74 (Fla. 4th DCA 2017), which certified conflict with

decisions of the First, Second, and Third District Courts of Appeal.1 For the

reasons explained below, we hold that the State is not entitled to the recapture

period discussed in Florida Rule of Criminal Procedure 3.191 where the State

informed the defendant it had terminated its prosecutorial efforts but failed to

notify the defendant of new and different charges based on the same conduct or




      1. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
criminal episode that were filed before the speedy trial period expired. Therefore,

we quash the Fourth District’s contrary decision in Born-Suniaga, disapprove the

Fifth District Court of Appeal’s decision in State v. Jimenez, 44 So. 3d 1230 (Fla.

5th DCA 2010), on which the Fourth District relied for its holding, to the extent it

is inconsistent with this decision, and approve the First, Second, and Third

District’s decisions in the certified conflict cases to the extent they are consistent

with this decision.

                                 I. BACKGROUND

      The Fourth District described the facts as follows:

              Following an incident on November 6, 2014, [Born-Suniaga]
      was arrested the same day for misdemeanor battery in attempting to
      prevent the victim from reporting a noise complaint to law
      enforcement. [Born-Suniaga] provided his address, posted bond, and
      was released on November 7, 2014.
              On February 6, 2015, ninety-two days after his arrest, the State
      filed an information charging [Born-Suniaga] with tampering with a
      witness in violation of section 914.22, Florida Statutes (2014), a
      felony, and misdemeanor battery, on the basis of the November
      incident. That same day, the State filed instructions for the Clerk to
      issue a not-in-custody capias as to both counts. On February 11,
      2015, the State asked the Broward Sheriff’s Office (“BSO”) to serve
      the capias, listing the address [Born-Suniaga] had provided upon his
      initial arrest. A detective was assigned to execute the warrant on
      March 25, 2015. There is no indication in the record that the detective
      made any effort to serve the warrant.
              On April 15, 2015, the State filed a “no information” sheet on
      the original misdemeanor battery charge. [Born-Suniaga] was
      notified that the charge had been dismissed and his bond discharged.
              The 175–day speedy trial period expired on April 30, 2015.
              [Born-Suniaga] first became aware of the new charges on
      November 19, 2015, well over 175 days after his arrest, through his

                                          -2-
co-defendant’s counsel. Upon becoming aware of the charges, [Born-
Suniaga] did not file a notice of expiration of speedy trial time.
Rather, on November 25, 2015, [Born-Suniaga] moved to discharge,
arguing that he was entitled to immediate discharge because the State
was not allowed a fifteen-day recapture period, as it had not made any
effort to notify him of the charges within the speedy trial period. The
State responded, arguing that because the information was filed before
the expiration of the 175–day period, the State was entitled to a
recapture period. The State further argued that reasonable efforts
were made to serve [Born-Suniaga] with the capias during the speedy
trial period, as evidenced by its communications with BSO.
       The trial court held an evidentiary hearing on the motion to
discharge. [Born-Suniaga] was the only witness to testify. He stated
that since his initial arrest, he had moved twice, but had updated his
address with the U.S. Postal Service each time and had his mail
forwarded from the original address. He did not update his address
with the Clerk’s office. However, he did not receive any forwarded
mail from the Clerk, much less anything suggesting that there were
pending charges against him. Nothing in the record indicates that the
Clerk’s office sent [Born-Suniaga] any notice when the information
was filed in February 2015.
       [Born-Suniaga] testified that he had repeatedly tried to
determine whether the State had filed any new charges against him.
On February 20, 2015, after his co-defendant was charged, [Born-
Suniaga] was informed by his attorney that there were no charges
against him. He went to the jail later that day when his co-defendant
turned himself in. At the jail, [Born-Suniaga] was informed by a
deputy that there were no charges pending against him. Later that
day, [Born-Suniaga] encountered other police officers who told him
he was free to go and informed him that there were no warrants
against him. In April 2015, [Born-Suniaga] looked his case up and
saw that it was listed as having been “disposed.” Based on this, he
was led to believe there were no charges against him.
       The State presented no evidence. It did not show that anyone
had attempted to notify [Born-Suniaga] of the charges filed. No
clerk’s office employee testified that any mailings had been sent to
[Born-Suniaga], and no testimony showed that BSO had made any
attempt to serve [Born-Suniaga].
       The trial court found that there was no record activity from
[Born-Suniaga] in the case file, no notices were ever mailed to him,

                                 -3-
      and the file “pursuant to the clerk’s office policy was sealed.” The
      court concluded that there was no way for [Born-Suniaga] to find out
      that this case existed and no effort to alert him to the fact that charges
      stemming from the initial incident were still ongoing. . . . [T]he court
      granted [Born-Suniaga’s] motion for discharge without allowing the
      State the fifteen-day recapture period. The State timely appealed.

Born-Suniaga, 219 So. 3d at 75-77 (footnotes omitted).

      On appeal, the State argued that the trial court “erred by granting [Born-

Suniaga’s] motion for discharge without affording the State the opportunity to try

him within the recapture period, where the information was filed within the speedy

trial timeframe, but [Born-Suniaga] was not served until after the expiration of that

time.” Id. at 77. An en banc Fourth District agreed with the State, finding support

for its conclusion in rule 3.191(p)—which provides that trial within a recapture

period is the remedy for the State’s failure to try a defendant within the time

specified by the speedy trial rule—and this Court’s decisions in State v. Nelson, 26

So. 3d 570 (Fla. 2010) (reaffirming that the defendant has a right to a speedy trial,

not the right to a speedy discharge), and State v. Naveira, 873 So. 2d 300 (Fla.

2004) (holding the State was entitled to the recapture period where it charged the

defendant on the last possible day under the speedy trial rule even though that

timing precluded the defendant from being prepared to go to trial within the speedy

trial time period). Id. at 77-80.

      In so holding, the Fourth District receded from its prior decisions “requiring

that the defendant be notified of the charges within the speedy trial period.” Id. at

                                         -4-
82. The Fourth District also certified conflict with Puzio v. State, 969 So. 2d 1197

(Fla. 1st DCA 2007), State v. Drake, 209 So. 3d 650 (Fla. 2d DCA 2017), State v.

McCullers, 932 So. 2d 373 (Fla. 2d DCA 2006), Cordero v. State, 686 So. 2d 737

(Fla. 3d DCA 1997), and State v. Gantt, 688 So. 2d 1012 (Fla. 3d DCA 1997). Id.

                                  II. ANALYSIS

      Born-Suniaga argues that the State is not entitled to the speedy trial rule’s

recapture period when it leads the defendant to believe that it has terminated its

prosecutorial efforts and fails to notify the defendant that new and different

charges based on the same conduct were filed before the speedy trial period

expired.2 We agree.

      This case solely involves the application of Florida Rule of Criminal

Procedure 3.191.3 Specifically, it relates to the default 175-day period of rule




       2. “[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 by this Court.” State
v. Nelson, 26 So. 3d 570, 573-74 (Fla. 2010).

       3. Because the parties in this case have not argued that the Florida
Constitution and United States Constitution should alter the application of Florida
Rule of Criminal Procedure 3.191, we do not address the constitutional
implications asserted by the dissent. Moreover, we quote and refer to the language
in the various subsections of rule 3.191 to apply the rule as a whole, as written, and
in context. The dissenting opinion focuses upon the sequence of our analysis,
thereby missing the entirety of the applied rule.


                                         -5-
3.191 when a defendant facing a felony charge does not formally demand a speedy

trial. Subdivision (a) of rule 3.191 states, in pertinent part, that

      every person charged with a crime shall be brought to trial . . . within
      175 days of arrest if the crime charged is a felony. If trial is not
      commenced within these time periods, the defendant shall be entitled
      to the appropriate remedy as set forth in subdivision (p).

Fla. R. Crim. P. 3.191(a). Subdivision (j) provides that “[i]f trial of the accused

does not commence within the periods of time established by this rule, a pending

motion for discharge shall be granted by the court unless it is shown that” one of

several mentioned exceptions apply. Fla. R. Crim. P. 3.191(j). Under subdivision

(p), the defendant’s filing of a notice of expiration of time for speedy trial triggers

the trial court to conduct the inquiry required by subdivision (j) to determine

whether any of the exceptions to the expiration of the speedy trial period (e.g., a

continuance charged to the defendant) are applicable. If not, subdivision (p)

requires that the State be given what is commonly referred to as a “recapture

period” within which to bring the defendant to trial. Specifically, subdivision

(p)(3) provides:

      No later than 5 days from the date of the filing of a notice of
      expiration of speedy trial time, the court shall hold a hearing on the
      notice and, unless the court finds that one of the reasons set forth in
      subdivision (j) exists, shall order that the defendant be brought to trial
      within 10 days. A defendant not brought to trial within the 10-day
      period through no fault of the defendant, on motion of the defendant
      or the court, shall be forever discharged from the crime.




                                          -6-
Fla. R. Crim. P. 3.191(p)(3); see also Nelson, 26 So. 3d at 576 (“[T]he recapture

period illustrates the principle that a defendant has a right to speedy trial, not a

right to speedy discharge without trial.”).

      Importantly, however, subdivision (o) of rule 3.191 provides that “[t]he

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.” Fla. R.

Crim. P. 3.191(o) (emphasis added). Therefore, “[t]he rule itself expressly warns

that the State may not circumvent the intent of the rule by appearing to drop the

charges against a defendant, only to refile them later.” Puzio, 969 So. 2d at 1201.

      This Court’s precedent confirms that the State’s charging decisions cannot

effectively toll the running of rule 3.191’s speedy trial period. In State v. Agee,

622 So. 2d 473, 475 (Fla. 1993), this Court analyzed the provision now codified in

subdivision (o) of rule 3.191 and “h[e]ld 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 denying the State the recapture

period in this situation, this Court explained that “[t]o allow the State to

unilaterally toll the running of the speedy trial period by entering a nol pros would


                                          -7-
eviscerate the rule—a prosecutor with a weak case could simply enter a nol pros

while continuing to develop the case and then refile charges based on the same

criminal episode months or even years later, thus effectively denying an accused

the right to a speedy trial while the State strengthens its case.” Id.

      Subsequently, in Genden v. Fuller, 648 So. 2d 1183 (Fla. 1994), this Court

considered a case in which the State had terminated the prosecution through a “no

action” before filing formal charges. In so doing, this Court refused to allow the

State to “circumvent the [speedy trial] rule simply by declining to prosecute an

arrestee before charges are filed,” concluding instead “that whether the State

voluntarily terminates a prosecution before an information is filed, as was done [in

the case before it], rather than after the defendant has been formally charged, as

was done in Agee, is a distinction without a legally cognizable difference.” Id. at

1185 (internal quotation marks omitted).

      In Born-Suniaga’s case, the facts are clear that he was “led to believe there

were no charges against him,” among other reasons, because he was “notified that

the charge [for which he was arrested] had been dismissed and his bond

discharged,” when in reality the State had filed new charges—before the State

dropped the original charge—but those new charges were “sealed,” and “there was

no way for [Born-Suniaga] to find out that [they] existed and no effort to alert him

to the fact that charges stemming from the initial incident were still ongoing”


                                          -8-
before the expiration of the speedy trial period. 219 So. 3d at 75-77. To be clear,

Born-Suniaga was arrested for misdemeanor battery on November 6, 2014, the

same day the conduct took place. Id. at 75. Then, on February 6, 2015, the State

filed an information charging Born-Suniaga with witness tampering and

misdemeanor battery based on the same November 2014 conduct. Id. “On April

15, 2015, the State filed a ‘no information’ sheet on the original misdemeanor

battery charge.” Id. Born-Suniaga was told that the original charge for which he

had been arrested had been dismissed and the bond discharged. Id. at 75-76.

However, he only “became aware of the new charges on November 19, 2015,”

after “[t]he 175-day speedy trial period [had] expired on April 30, 2015.” Id. at 76.

      Accordingly, because the State notified Born-Suniaga that it dismissed the

original charges and discharged his bond but failed to notify him that it in fact had

filed new charges based on the same conduct, the trial court correctly denied the

State the recapture period and discharged Born-Suniaga. Allowing the State to

proceed to trial pursuant to the recapture period described in subdivision (p) would

allow the State to avoid the effect of the speedy trial time period described in

subdivision (a) “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,” a result that is expressly

prohibited by subdivision (o). Fla. R. Crim. P. 3.191(o). It would also allow the


                                          -9-
State to do indirectly—arrest the defendant, lead the defendant (whether

intentionally or not) to believe it is no longer pursing the prosecution, and file new

charges within the speedy trial period that are only revealed when the defendant

can no longer have the speedy trial guaranteed by the rule—what the State cannot

do directly under Agee (and Genden)—arrest the defendant, nolle prosse (or no

action) the case, and recharge (or charge) the defendant after the speedy trial period

expires. “The central concern is to prevent the State from avoiding the rule by

waiting to formally charge an accused, appearing to abandon the case, and then

resurrecting the charges later, based on the same conduct.” Puzio, 969 So. 2d at

1201; see also McCullers, 932 So. 2d at 375-76 (“A defendant’s right to file a

notice of expiration is similarly defeated even where charges are filed before

expiration of the speedy trial period if the State has previously acted affirmatively

to terminate its prosecutorial efforts but then has filed charges without rearresting

or otherwise giving notice to the defendant before expiration of the period.”).

      Rather than construing rule 3.191 in its entirety, the Fourth District’s

decision below improperly focused upon the remedy of the recapture period

outlined in subdivision (p). And contrary to the Fourth District’s conclusion

otherwise, this Court’s decision in Naveira does not sanction the State avoiding the

speedy trial rule by informing the defendant that the charges against him were

dismissed but failing to notify him that new charges based on the same conduct


                                        - 10 -
were filed so long as the State files the new charges within the speedy trial period.

In Naveira, we held that the State did not violate the defendant’s right to speedy

trial under rule 3.191 by charging the defendant on the 175th day following his

arrest. 873 So. 2d at 302, 306-07. Our decision in Naveira focused on whether the

timing precluded him from preparing for trial within the speedy trial time period.

In contrast, because Born-Suniaga was “led to believe there were no charges

against him,” Born-Suniaga, 219 So. 3d at 76, he did not have the same choice as

Naveira—to enforce his “right to invoke the speedy trial rule and go to trial within

ten days [or] to request a continuance because he was not prepared to go to trial in

ten days,” Naveira, 873 So. 2d at 307-08. Accordingly, while this Court in

Naveira rejected a “case-by-case approach to determining whether the State is

entitled to the recapture period,” Born-Suniaga, 219 So. 3d at 81, it did so in the

context of rejecting a “ ‘speedy charging period’ with a shifting and unknown

deadline,” Naveira, 873 So. 2d at 310, not in the context of allowing the State to

lure the defendant into believing there is no need to file a notice of expiration of

speedy trial because no charges are pending.

       Under the circumstances in this case, the trial court correctly denied the

State the recapture period and discharged Born-Suniaga. See Fla. R. Crim. P.

3.191(a), (j), (o)-(p).




                                         - 11 -
                                III. CONCLUSION

      For the reasons above, we quash the Fourth District’s decision in Born-

Suniaga, disapprove the Fifth District’s decision in Jimenez to the extent it is

inconsistent with this opinion, and approve the First District’s decisions in Puzio,

the Second District’s decisions in McCullers and Drake, and the Third District’s

decisions in Cordero and Gantt to the extent they are consistent with this opinion.

      It is so ordered.

PARIENTE, LEWIS, QUINCE, and LABARGA, JJ., concur.
LAWSON, J., dissents with an opinion, in which CANADY, C.J., concurs.

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

LAWSON, J., dissenting.

      I would read Florida Rule of Criminal Procedure 3.191 as it is written and

thereby alleviate the constitutional concerns inherent in the majority’s misreading

of this rule of procedure, commonly referred to as the “speedy trial rule.” Because

this was the approach taken by Fourth District Court of Appeal, I would approve

that court’s well-reasoned, unanimous en banc opinion. Therefore, I dissent.

                                 BACKGROUND

      On November 6, 2014, Born-Suniaga was arrested on a charge of

misdemeanor battery for an incident that had occurred that day. State v. Born-

Suniaga, 219 So. 3d 74, 75 (Fla. 4th DCA 2017). He posted bond and was


                                        - 12 -
released the next day. Id. Ninety-two days after his arrest, the State filed an

information charging Born-Suniaga with both witness tampering, a third-degree

felony, and misdemeanor battery, based upon the November 6 incident. Id. The

State immediately requested a capias and, a few days later, asked the Broward

County Sheriff’s Office to serve the capias on Born-Suniaga. Id. Thereafter, the

State also filed a “no information” sheet as to the original battery charge, causing

the original bond to be discharged—such that Born-Suniaga’s liberty was no

longer restricted in any way as a result of the initial arrest. Id. at 75-76. For

reasons not explained in the record, the information was filed or treated by the

Clerk of Court as “sealed” and was not timely served by the Sheriff. Id. at 76.

Born-Suniaga was alerted to the charges by a co-defendant’s counsel on November

19, 2015—a little more than one year after his initial arrest on the battery charge.

Id.

                                     ANALYSIS

I. Florida’s Speedy Trial Rule

      A. What the Rule Plainly Says.

      Florida Rule of Criminal Procedure 3.191, the “speedy trial rule,” provides

that a defendant who is not brought to trial within 175 days of his or her arrest (on

a felony charge and on any misdemeanor charged with a felony) may file a notice

of expiration of the 175-day “speedy trial period,” giving the State a very short


                                         - 13 -
window of time—a “recapture period” of about two weeks—during which to try

the defendant or have the charges permanently dismissed. See Fla. R. Crim. P.

3.191(a), (p).

      The majority begins its analysis by accurately quoting subdivision (a) of the

rule, which states in pertinent part that

      every person charged with a crime shall be brought to trial . . . within
      175 days of arrest if the crime charged is a felony. If trial is not
      commenced within these time periods, the defendant shall be entitled
      to the appropriate remedy as set forth in subdivision (p).
Fla. R. Crim. P. 3.191(a) (emphasis added). Oddly, the majority then skips

subdivision (p), the very subdivision to which subdivision (a) directs the reader for

the “appropriate remedy” available to a defendant who is not brought to trial

“within 175 days of arrest.” Subdivision (p), the “remedy” provision skipped in

the majority’s analysis, provides in its entirety:

         (p) Remedy for Failure to Try Defendant within the Specified
      Time.

          (1) No remedy shall be granted to any defendant under this rule
      until the court has made the required inquiry under subdivision (j).

          (2) At any time after the expiration of the prescribed time period,
      the defendant may file a separate pleading entitled “Notice of
      Expiration of Speedy Trial Time,” and serve a copy on the
      prosecuting authority.

          (3) No later than 5 days from the date of the filing of a notice of
      expiration of speedy trial time, the court shall hold a hearing on the
      notice and, unless the court finds that one of the reasons set forth in
      subdivision (j) exists, shall order that the defendant be brought to trial


                                            - 14 -
      within 10 days. A defendant not brought to trial within the 10-day
      period through no fault of the defendant, on motion of the defendant
      or the court, shall be forever discharged from the crime.

Fla. R. Crim. P. 3.191(p).

      As seen above, the remedy unambiguously set forth in the speedy trial rule

for a defendant not brought to trial within 175 days after arrest is three-fold. First,

the defendant is entitled to file and serve a notice of expiration of speedy trial. Fla.

R. Crim. P. 3.191(p)(2). Second, this filing triggers a short time window during

which the State is required to present its evidence at trial. Fla. R. Crim. P.

3.191(p)(3). Third, if the State cannot bring the defendant to trial within the

recapture period, the defendant is to be “forever discharged from the crime.” Id.

Immediate discharge without a recapture period is not included as an “appropriate

remedy.” See id. Additionally, subdivision (p) directs that the defendant is not

entitled to the remedies set forth in subdivision (p) “until the court has made the

required inquiry under subdivision (j).” Fla. R. Crim. P. 3.191(p)(1). Subdivision

(j) provides:

          (j) Delay and Continuances; Effect on Motion. If trial of the
      accused does not commence within the periods of time established by
      this rule, a pending motion for discharge shall be granted by the court
      unless it is shown that:

          (1) a time extension has been ordered under subdivision (i) and
      that extension has not expired;

         (2) the failure to hold trial is attributable to the accused, a
      codefendant in the same trial, or their counsel;

                                         - 15 -
          (3) the accused was unavailable for trial under subdivision (k); or

          (4) the demand referred to in subdivision (g) is invalid.

      If the court finds that discharge is not appropriate for reasons under
      subdivisions (j)(2), (3), or (4), the pending motion for discharge shall
      be denied, provided, however, that trial shall be scheduled and
      commence within 90 days of a written or recorded order of denial.

Fla. R. Crim. P. 3.191(j).

      The three subdivisions quoted above—(a), (p), and (j)—in that order (as

expressly directed in the rule), encompass the basic mechanism for application of

the speedy trial rule in a case where the time for bringing the defendant to trial has

expired—there is no provision authorizing a different remedy under special

circumstances; there is only the remedy authorized by subdivision (p).

      As explained above, the majority opinion evades this conclusion by skipping

subdivision (p)—the sole “remedy” provision in the rule—and quoting subdivision

(j) out of context, making it sound as if the rule authorizes discharge without a

recapture period when it does not. Majority op. at 6. The majority writes:

      Subdivision (a) of rule 3.191 states, in pertinent part, that

             every person charged with a crime shall be brought to
             trial . . . within 175 days of arrest if the crime charged is
             a felony. If trial is not commenced within these time
             periods, the defendant shall be entitled to the appropriate
             remedy as set forth in subdivision (p).
      Fla. R. Crim. P. 3.191(a). Subdivision (j) provides that “[i]f trial of
      the accused does not commence within the periods of time established


                                         - 16 -
       by this rule, a pending motion for discharge shall be granted by the
       court unless it is shown that” one of several mentioned exceptions
       apply. Fla. R. Crim. P. 3.191(j).

Majority op. at 6 (emphasis added). By skipping subdivision (p) and quoting

subdivision (j) immediately after subdivision (a), an uninformed reader could be

left with the misimpression that the rule provides for discharge without a recapture

period whenever a case does not proceed to trial within 175 days after arrest. But,

when these expressly interlinked subdivisions are read in the sequence expressly

directed in the rule itself (in other words, as plainly written), it is clear that the rule

provides for permanent discharge only when a “defendant [is] not brought to trial

within the 10-day [recapture] period through no fault of the defendant, on motion

of the defendant,” Fla. R. Crim. P. 3.191(p)(3), and then only after “the court has

made the required inquiry under subdivision (j).” Fla. R. Crim. P. 3.191(p)(1).

       B. Application of the Speedy Trial Rule, as Written, in this Case.

       Applying the rule as it is written would have allowed Born-Suniaga to

secure a trial within two weeks of the day he first learned of the charges pending

against him—charges that were filed within 175 days of his initial arrest as

required by State v. Agee, 622 So. 2d 473, 475 (Fla. 1993).4 This is, after all, the




      4. For reasons explained below, I disagree with the limitation that our
precedent, in decisions such as Agee, places on the State’s ability to charge a
defendant after 175 days from the defendant’s initial arrest. In any event, this

                                          - 17 -
speedy trial rule, not the speedy discharge rule. And, that opportunity for a speedy

trial is what the express terms of the rule unambiguously provide a defendant and

the State. Ironically, over thirty years ago we specifically removed, as antithetical

to the rule’s purpose, the very remedy of immediate discharge that the majority

writes back in with its anti-textual “interpretation.” See Fla. R. Crim. P. 3.191

committee notes (1984); see also State v. Nelson, 26 So. 3d 570, 576 (Fla. 2010)

(“The creation of the recapture period emphasizes the purpose of the rule—‘to

promote the efficient operation of the court system and to act as a stimulus to

prosecutors to bring defendants to trial as soon as practicable, thus minimizing the

hardships placed upon accused persons awaiting trial.’ In other words, the

recapture period illustrates the principle that a defendant has a right to speedy trial,

not a right to speedy discharge without trial.”) (citation omitted) (quoting Lewis v.

State, 357 So. 2d 725, 727 (Fla. 1978)).

      The rule itself is clear and unambiguous and does not authorize discharge

without a recapture period under any circumstances.

      C. Born-Suniaga’s Argument and the Majority’s Misreading of the
         Rule.




precedent does not apply to the facts of this case because the State charged Born-
Suniaga within 175 days of his initial arrest.

                                         - 18 -
       Contrary to the plain language of the speedy trial rule, Born-Suniaga sought

immediate discharge on the theory that the court should ignore the actual rule

altogether and instead apply the unwritten, different, and contrary rule applied by

the First, Second, and Third District Courts of Appeal that, in his view, better

captures the “spirit” of the written rule he asks us to contravene. See, e.g., Puzio v.

State, 969 So. 2d 1197, 1201 (Fla. 1st DCA 2007) (opining that providing the State

a recapture period in cases where the defendant was unaware of charges until after

expiration of the speedy trial period would be “contrary to the spirit of the speedy

trial rule”).

       The majority sides with Born-Suniaga, not because it agrees that the “spirit”

of the speedy trial rule justifies immediate discharge but because it reads

subdivision (o) as negating subdivisions (a), (p) and (j)—which provide for the

recapture period. Subdivision (o) reads:

              (o) Nolle Prosequi; Effect. 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.

Fla. R. Crim. P. 3.191(o).

       At first reading, and standing alone, the practical application of this

subdivision is not readily apparent. But when considered in context, this


                                         - 19 -
subdivision makes sense. The key is first understanding the “intent and effect” of

the rule, which is clear from the unambiguous language of the core provisions for

remedying a speedy trial violation quoted above: subdivisions (a), (p) and (j). The

unambiguous intent and effect of these core provisions is to give a defendant

whose liberty interests are impaired by pending charges an opportunity to secure a

“speedy” resolution of those charges by securing a “speedy trial”—while also

protecting the interests of the State and victims of crime by providing a reasonable

opportunity for a trial before a case is permanently discharged. In theory, the State

could avoid this “intent and effect” if, after the defendant filed a proper notice of

expiration and during the recapture period, the State were permitted to nolle pros

the charges and thereby avoid permanent discharge by the court. Rather than

reading subdivision (o) as negating the unambiguous core provisions of the rule,

subdivision (o) should be read in harmony with the rest of the rule as preventing

the State from avoiding the ultimate remedy of discharge in those cases where it

cannot bring the defendant to trial during the recapture period.

      Reading the rule in this manner would better reflect the constitutional speedy

trial right that this procedural rule is designed to effect and, more importantly,

would avoid the separation of powers entanglement that occurs when the judiciary

unjustifiably interferes with substantive law or executive discretion under the guise

of procedural rulemaking. See generally Boyd v. Becker, 627 So. 2d 481, 484 (Fla.


                                         - 20 -
1993) (explaining that this Court’s rulemaking authority “is limited to rules

governing procedural matters and does not extend to substantive rights” such as

“statutes of limitation [that] supersede [this Court’s] procedural rules”). In

summary, defining what constitutes a crime, the appropriate punishment (or range

of punishments) for those crimes, and the time limit within which the executive

must file charges and notify an accused of those charges are substantive law issues

properly determined by the Legislature. Deciding whether or when to file charges

within the time frame established by the Legislature is an executive function.

Because these are legislative and executive functions, the judiciary should not

interfere with them by creating a different time-based deadline unless there is a

valid legal justification for its action.

       For example, rule 3.191 is designed to provide a procedure to protect the

constitutional speedy trial right guaranteed by the Sixth Amendment. If shortening

the time within which a prosecutor must notify an accused of pending charges were

necessary to protect the speedy trial right, the judiciary would have a legal basis for

doing so. As I will demonstrate below, however, neither the speedy trial right nor

any other legal basis exists to justify judicial interference with substantive law or

executive discretion in this area. That is why I agree with other justices who have

concluded that this Court’s interpretation and application of rule 3.191

unjustifiably interferes with substantive law and executive discretion in a manner


                                            - 21 -
that raises significant constitutional concerns. See, e.g., Bulgin v. State, 912 So. 2d

307, 313 (Fla. 2005) (Bell, J., concurring in result only) (“The precedent of this

Court constrains me to concur with the majority. However, . . . I too believe that

we have applied (and now rewritten) a judicially created rule of procedure in a

manner that unnecessarily constricts the applicable statute of limitations.”); id. at

314 (Wells, J., dissenting) (“I dissent because the majority applies a judicial rule of

procedure in a manner that eviscerates the statute of limitations enacted by the

Legislature. The majority’s decision adds to a line of precedents from this Court

that has created and continually expanded a substantive right which has no basis in

the original language of the rule itself or in Florida’s statutes and is not mandated

by the State or Federal Constitutions.”); Reed v. State, 649 So. 2d 227, 230 (Fla.

1995) (Wells, J., dissenting) (“I am concerned that this decision is another

substantial evisceration of the statutes of limitation in criminal-law prosecutions.

This decision goes even further than Genden v. Fuller, 648 So. 2d 1183 (Fla.

1994).”); id. at 229-30 (Shaw, J., dissenting) (“I dissent for the same reasons I

joined Justice Wells’ dissents in [Genden] and Farina v. Perez, 647 So. 2d 113

(Fla. 1994). It seems that [Agee] has taken on a Frankenstein-like role I never

envisioned or intended when I authored that opinion.”); id. at 229 (Overton, J.,

dissenting) (“I agree fully with Justice Wells’ dissent. I write to express my belief

that the majority has now crossed the line and made our speedy trial rule


                                         - 22 -
substantive rather than procedural by this construction and that, consequently, it is

unconstitutional.”); Genden, 648 So. 2d at 1186 (Wells, J., dissenting) (joined by

Overton and Shaw, JJ.) (“I emphasize that here we are dealing with a rule of court

procedure. This rule should not be applied so broadly that it eviscerates the statute

of limitations set by the [L]egislature.”). These concerns arise because the

majority’s misreading of the rule does not account for any of the applicable

constitutional concerns.

II. Constitutional Provisions that Should Guide Our Interpretation and
Application of the Speedy Trial Rule.

      A. Article III, Section 1, Florida Constitution.

      Under our Constitution, the power to enact substantive laws is granted

exclusively to the Florida Legislature. See art. III, § 1, Fla. Const.; see also

Benyard v. Wainwright, 322 So. 2d 473, 475 (Fla. 1975). Section 914.22, Florida

Statutes (2014), creates the crime of tampering with a witness, making it a third-

degree felony when, as here, it “involves the investigation or prosecution of a

misdemeanor,” and section 775.15(2)(b), Florida Statutes (2014), grants the State

three years from the offense date within which to file third-degree felony charges

on the offense. There are some exceptions and nuances, but, in general, if the State

fails to file charges on a third-degree felony within three years after the crime is

committed, the State will be forever barred from charging or trying the accused, as

a matter of substantive law. Substantive law also requires timely notice of the filed

                                         - 23 -
charges to a defendant. This is accomplished by section 775.15(4)(b), which

provides that the filing of an information only satisfies this substantive, statutory

time limitation if the “capias, summons, or other process issued on such indictment

or information is executed without unreasonable delay.” Applying these

provisions to this case shows that the State had until November 6, 2017, within

which to file an information charging the crime and was also granted a

“reasonable” amount of time thereafter within which to notify Born-Suniaga of the

charge, before the trial could be barred based upon the passage of time. The State

acted well within these substantive deadlines.

      Under the majority’s interpretation of rule 3.191, the time frame within

which the State had to notify the defendant of the charges against him was

shortened from more than three years (the three-year statute of limitations plus the

reasonable period thereafter within which to give notice), as provided by general

law, to less than six months (175 days with no additional time within which to give

notice), as provided by the majority—radically truncating the statute of limitations

and notice provisions enacted by the Legislature. For the judiciary to truncate the

legislatively enacted statute of limitations and notice provision from more than

three years to less than six months without raising constitutional concerns, there

should be a constitutional basis for our action. See Boyd, 627 So. 2d at 484. The

authority to promulgate procedural rules, standing alone, necessarily cannot


                                         - 24 -
authorize us to trump the Legislature’s substantive-law decision that the State is to

be granted three years in which to file a charge of tampering with a witness (and a

reasonable time thereafter in which to notify the defendant of the charge). See id.

      I will address each of those possible sources of authority, in turn, and

explain why none of them supplies a reasoned justification for the judiciary to

shorten the statute of limitations under the guise of procedural rulemaking.

     B. Due Process Clause, Fourteenth Amendment, United States
Constitution.

      The Fourteenth Amendment Due Process Clause protects against an

oppressive delay between the commission of a crime and the arrest of the accused

or filing of an information or indictment. See United States v. Lovasco, 431 U.S.

783, 789 (1977). If a truncated statute of limitations (and notice period) were

necessary to protect the due process rights of those arrested for criminal conduct,

the Due Process Clause could justify a procedural rule shortening the time frame

for notice from over three years to 175 days after arrest—as the majority has held.

However, the United States Supreme Court has made clear that separation of

powers concerns dictate deference to the legislative and executive branches of

government, in most cases, when it comes to the time taken to prosecute a case.

Id.

      With respect to the legislative branch, the Supreme Court has held that

“statutes of limitations . . . provide ‘the primary guarantee against bringing overly

                                        - 25 -
stale criminal charges.’ ” Id. (quoting United States v. Marion, 404 U.S. 307, 322

(1971)). With respect to the executive branch, the Supreme Court explained:

      [P]rosecutors do not deviate from “fundamental conceptions of
      justice” when they defer seeking indictments until they have probable
      cause to believe an accused is guilty; indeed it is unprofessional
      conduct for a prosecutor to recommend an indictment on less than
      probable cause. It should be equally obvious that prosecutors are
      under no duty to file charges as soon as probable cause exists but
      before they are satisfied they will be able to establish the suspect’s
      guilt beyond a reasonable doubt. To impose such a duty “would have
      a deleterious effect both upon the rights of the accused and upon the
      ability of society to protect itself.” United States v. Ewell[, 383 U.S.
      116, 120 (1966)]. From the perspective of potential defendants,
      requiring prosecutions to commence when probable cause is
      established is undesirable because it would increase the likelihood of
      unwarranted charges being filed, and would add to the time during
      which defendants stand accused but untried. These costs are by no
      means insubstantial since, as we recognized in Marion, a formal
      accusation may “interfere with the defendant’s liberty, . . . disrupt his
      employment, drain his financial resources, curtail his associations,
      subject him to public obloquy, and create anxiety in him, his family
      and his friends.” 404 U.S. [at 320]. From the perspective of law
      enforcement officials, a requirement of immediate prosecution upon
      probable cause is equally unacceptable because it could make
      obtaining proof of guilt beyond a reasonable doubt impossible by
      causing potentially fruitful sources of information to evaporate before
      they are fully exploited. And from the standpoint of the courts, such a
      requirement is unwise because it would cause scarce resources to be
      consumed on cases that prove to be insubstantial, or that involve only
      some of the responsible parties or some of the criminal acts. Thus, no
      one’s interests would be well served by compelling prosecutors to
      initiate prosecutions as soon as they are legally entitled to do so.

Lovasco, 431 U.S. at 790-92 (footnotes omitted) (emphasis added); see also id. at

792 (concluding that adopting the rule that “once the Government has assembled

sufficient evidence to prove guilt beyond a reasonable doubt, it should be

                                       - 26 -
constitutionally required to file charges promptly, even if its investigation of the

entire criminal transaction is not complete . . . would have many of the same

consequences as adopting a rule requiring immediate prosecution upon probable

cause”).

      For the reasons explained in Lovasco, the Due Process Clause cannot justify

this Court’s shortened 175-day time-frame for notifying Born-Suniaga of his

witness-tampering charge. See id. Rather, a prosecutor should be able to file a “no

information” after an arrest, as was done here, and should then have the amount of

time granted by the Legislature, in substantive law, to file charges. Id. At that

point, a defendant would need to show substantial and “actual prejudice” before a

Due Process Clause excessive-delay claim would ripen. Id. at 789-90. In Lovasco,

for example, the defendant testified that two material witnesses had died before the

government filed charges against him. Id. at 785-86. Even then, prejudice from

the government’s “lengthy preindictment delay,” standing alone, did not justify the

dismissal of charges with prejudice, id. at 788-89, the remedy that this Court

authorized in this case with no showing of prejudice.

      As seen in the passages quoted from Lovasco, it is not simply that the Due

Process Clause cannot justify a judicial shortening of the legislatively enacted

statute of limitations; rather, the United States Supreme Court has condemned any

attempt by the judiciary to interfere with the authority granted to the legislative and


                                        - 27 -
executive branches in this area as having “a deleterious effect both upon the rights

of the accused and upon the ability of society to protect itself,” id. at 791 (quoting

Ewell, 383 U.S. at 120), and as being “unwise,” id. at 792.

      C. Speedy Trial Clause, Sixth Amendment, United States Constitution.

      The Sixth Amendment Speedy Trial Clause protects against unreasonable

delay in bringing a defendant to trial after his or her arrest or the filing of a

charging document. United States v. MacDonald, 456 U.S. 1, 6-7 (1982). As with

the Due Process Clause, a defendant must establish prejudice as a result of delay

before there can be any consideration of dismissing charges under the Sixth

Amendment Speedy Trial Clause. See Barker v. Wingo, 407 U.S. 514, 530 (1972).

Again, because Born-Suniaga has not attempted to establish prejudice based upon

delay in this case, he has no basis for even suggesting—and, indeed, he does not

suggest—that the Sixth Amendment speedy trial right could justify dismissal of the

charges in this case.

      More importantly, the Sixth Amendment Speedy Trial Clause is “not

primarily intended to prevent prejudice to the defense caused by passage of time.”

MacDonald, 456 U.S. at 8. Rather, it is primarily “designed to minimize the

possibility of lengthy incarceration prior to trial, to reduce the lesser, but

nevertheless substantial, impairment of liberty imposed on an accused while




                                          - 28 -
released on bail, and to shorten the disruption of life caused by arrest and the

presence of unresolved criminal charges.” Id. For this reason:

             Once charges are dismissed, the speedy trial guarantee is no
      longer applicable. At that point, the formerly accused is, at most, in
      the same position as any other subject of a criminal investigation.
      Certainly the knowledge of an ongoing criminal investigation will
      cause stress, discomfort, and perhaps a certain disruption in normal
      life. This is true whether or not charges have been filed and then
      dismissed. This was true in Marion, where the defendants had been
      subjected to a lengthy investigation which received considerable press
      attention. But with no charges outstanding, personal liberty is
      certainly not impaired to the same degree as it is after arrest while
      charges are pending. After the charges against him have been
      dismissed, “a citizen suffers no restraints on his liberty and is [no
      longer] the subject of public accusation: his situation does not
      compare with that of a defendant who has been arrested and held to
      answer.” [Marion, 404 U.S. at 321]. Following dismissal of charges,
      any restraint on liberty, disruption of employment, strain on financial
      resources, and exposure to public obloquy, stress and anxiety is no
      greater than it is upon anyone openly subject to a criminal
      investigation.

Id. at 8-9 (footnotes omitted) (emphasis added).

      Clearly, Born-Suniaga had no substantive claim for dismissal under the

Sixth Amendment Speedy Trial Clause based upon the State’s decision to file a

“no information” as to the battery charge, because that act meant that the

constitutional speedy trial guarantee was “no longer applicable.” Id. at 8. Nor did

the State’s decision to file an information charging a felony, along with the

misdemeanor battery, in any way violate the speedy trial right. See id. at 8-9.




                                        - 29 -
          For these reasons, the Sixth Amendment Speedy Trial Clause cannot justify

this Court’s creation of an alternative substantive deadline, based solely upon the

passage of time, within which the State must file charges and give notice of those

charges to a defendant. And, again, it is not just that the Speedy Trial Clause

cannot justify a judicial shortening of the legislatively enacted statute of

limitations; rather, when one understands the speedy trial right it becomes apparent

that Florida’s speedy trial rule, as written, protects that right without requiring

permanent discharge for failure to file charges and give notice within 175 days of

arrest.

          For example, consider a defendant arrested by police at or near the scene of

a crime based upon a probable cause finding, as occurred here. Rule 3.191, as

written, would require prosecutors to assess the case and either (1) file charges

within 175 days if the State believed it could meet its burden of proof or (2) file a

“no information” within 175 days if the State needed additional time for

investigation.

          What the majority does not seem to appreciate is that the filing of a “no

information” within 175 days completely eliminates any constitutional speedy trial

right issue. Id. at 8 (“Once charges are dismissed, the speedy trial guarantee is no

longer applicable.”). Then, if the State could gather the necessary evidence prior

to the running of the statute of limitations, it could refile charges with no


                                           - 30 -
constitutional speedy trial impediment. See id. at 8-9. As written, rule 3.191

would also protect the speedy trial right in the event of charges filed (or re-filed)

after 175 days because the remedy provision would allow the defendant to

immediately file a notice of expiration as soon as he or she is notified of the

charges. Fla. R. Crim. P. 3.191(p)(2). By doing so, the defendant could then force

the State to trial within two weeks—while facing the threat of permanent dismissal

of the charges if the State cannot proceed in that time frame. Because subdivision

(o), as read in harmony with the rest of the rule, does not allow the State to avoid

permanent discharge by filing a nolle pros during the recapture period, the State

could not risk filing charges more than 175 days after arrest unless it had

marshalled the evidence it believed sufficient to prove the charges beyond a

reasonable doubt.

D.    Article V, Section 1, Florida Constitution.

      “The judicial power shall be vested in a supreme court, district courts of

appeal, circuit courts and county courts.” Art. V, § 1, Fla. Const. As a necessary

corollary to their judicial power, courts have inherent authority to dismiss a case as

the ultimate sanction for extreme misconduct. See Rose v. Palm Beach County,

361 So. 2d 135, 138 (Fla. 1978) (“Every court has inherent power to do all things

that are reasonably necessary for the administration of justice within the scope of

its jurisdiction, subject to valid existing laws and constitutional provisions.”); State


                                         - 31 -
v. Williams, 623 So. 2d 462, 467 (Fla. 1993) (“[T]he only appropriate remedy to

deter [the] outrageous law enforcement conduct [of illegally manufacturing the

drugs sold to the defendant during a reverse-sting operation] is to bar the

defendant’s prosecution.”). That power is generally unrelated to the passage of

time, or delay, but generally also requires specific findings not present here that the

State has violated a constitutional right of the accused. See, e.g., id. at 463 (“[T]he

illegal manufacture of crack cocaine by law enforcement officials for use in a

reverse-sting operation . . . constitutes governmental misconduct which violates the

due process clause of the Florida Constitution.”).

      The majority cannot justify its summary-dismissal-with-prejudice procedure

based upon the inherent authority of the judiciary because neither the State’s

voluntary dismissal of a case nor the filing of new charges based upon the same

criminal conduct, within the statute of limitations period, violates any

constitutional right of the accused—and cannot be classified as misconduct.

MacDonald, 456 U.S. at 8-9; Lovasco, 431 U.S. at 790-95, 793-95.

      In this case, for example, there is no evidence of misconduct associated with

sealing the record of Born-Suniaga’s new charges. Although the Florida Rules of

Criminal Procedure did not require the clerk to seal the record, see Born-Suniaga,

219 So. 3d at 76 n.2, the allegations of witness tampering and battery in Born-

Suniaga’s case underscore that there were good policy reasons for doing so,


                                         - 32 -
including the safety of the officers executing the warrant and the safety of the

victim, whom Born-Suniaga allegedly battered in an attempt to prevent the victim

“from reporting a noise complaint to law enforcement.” Id. at 75.

      E.     Article V, Section 2, Florida Constitution.

      Article V, section 2 of the Florida Constitution authorizes this Court to

“adopt rules for the practice and procedure in all courts.” Procedural rules provide

order to the justice system and are primarily judged by two standards.

      First, it is axiomatic that procedural rules should be written in a manner that

assures procedural due process to all parties. See Pressley v. Wainwright, 367 So.

2d 222, 223 n.10 (Fla. 1979) (England, C.J., dissenting) (“It is, of course, self-

evident that our appellate rules provide procedural due process . . . .”); see also

State v. Diaz de la Portilla, 177 So. 3d 965, 968 (Fla. 2015) (recognizing that the

procedural rules governing indirect criminal contempt reflect the required

“procedural due process safeguards”) (citation omitted).

      Although the “guarantee of due process, viewed in its procedural aspect,

requires no particular form of procedure . . . [d]ue process [does] require[] . . . that

certain safeguards exist in whatever procedural form it is afforded.” 16B Am. Jur.

2d Constitutional Law § 961 (2009) (footnotes omitted). The essential elements of

these constitutionally required procedural safeguards are “reasonable notice” and

“a fair opportunity to be heard before the issues are decided.” Id.


                                         - 33 -
      Given that the raison d’être of procedural rules is to provide procedural due

process to all parties, the irony of using case law to judicially rewrite a procedural

rule so that it sanctions a party who followed the letter of the rule—and did no

wrong—by throwing out its case with prejudice, is rich.

      Born-Suniaga did not have a procedural “right” to discharge without

affording the State a recapture period because that is not the remedy set forth in

rule 3.191. That is the way procedural rights have to be created and applied—by

the letter of the rule—because reading a procedural rule differently than it is

plainly written, to the benefit of one party and the detriment of another, is contrary

to the Due Process Clause.

      Second, as already discussed, it is axiomatic that the judicial branch cannot

create or abridge substantive law under the guise of procedural rulemaking because

doing so would violate the separation of powers doctrine. See generally Boyd, 627

So. 2d at 484 (explaining that this Court’s rulemaking authority “is limited to rules

governing procedural matters and does not extend to substantive rights” such as

“statutes of limitation [that] supersede [this Court’s] procedural rules”). But that is

exactly what this Court did in Agee and does again today by extending Agee to

require summary dismissal with prejudice in this case, even though the State filed

its information and gave notice to Born-Sunaiga well within the time periods

required by substantive law.


                                         - 34 -
      In essence, this Court has taken an arbitrary procedural time frame designed

to trigger a specific procedural “remedy” (aimed at providing an orderly

mechanism for protecting the constitutional speedy trial rights of an accused,

consistent with due process for all parties) and elevated that arbitrary procedural

time frame into a substantive right pursuant to which the State must file charges

and give notice of those charges within 175 days after arrest in all cases—thereby

truncating and trumping the statute of limitations and notice deadlines created by

the Legislature.

      Even setting aside separation of powers concerns, consider how this Court’s

prior dubious interpretation of our speedy trial rule could thwart “the ability of

society to protect itself” in a hypothetical murder case. Lovasco, 431 U.S. at 791

(quoting Ewell, 383 U.S. at 120). It is not hard to imagine a first-degree murder

case in which two suspects are arrested based upon conclusive evidence that

they—and no one else—were with the victim in her house when she was murdered

using a knife (or knives), with multiple stab wounds inflicted. As soon as the two

are identified, police secure a warrant and arrest them for the murder. Of course,

even conclusive circumstantial evidence that at least one of the suspects had to

have murdered the victim would be insufficient to convict either of them. See

generally State v. Reddick, 568 So. 2d 902, 903 n.2 (Fla. 1990) (recognizing the

State’s burden to prove that “the defendant caused the [victim’s] death” as one of


                                        - 35 -
the three elements of first-degree murder). If investigators were unable to locate

evidence sufficient to prove beyond a reasonable doubt which one of the

defendants committed the murder (or that both were involved) as the 175-day

speedy trial deadline approached, the prosecutor would have to file a “no

information,” and both suspects would be released without condition—satisfying

all protections afforded by the Speedy Trial Clause. MacDonald, 456 U.S. at 8-9.

However, Agee would prevent further prosecution even if, a few days later, one of

the suspects confessed and turned over a video showing both repeatedly stabbing

the defendant with similar knives. Although the “no information” would have

protected the killers’ constitutional speedy trial rights without permanent discharge

(applying rule 3.191 as written), this Court’s precedent would forever thwart the

State’s ability to punish the killers and protect society from two violent criminals

because it misinterprets the rule as creating a substantive 175-day time bar to

prosecution—contrary to the Legislature’s determination that “prosecution for a

capital felony, a life felony, or a felony that resulted in a death may be commenced

at any time.” § 775.15(1).

      There is no way to know how many times this Court’s misinterpretation of

rule 3.191 has resulted in discharge without trial or acted to bar further prosecution

in cases dropped by the State where evidence was later secured that would have

otherwise allowed prosecution within the statute of limitations period. However, it


                                        - 36 -
is clear from this Court’s opinions, and from other appellate decisions applying this

Court’s precedent, that the 175-day period has been used as a substantive,

permanent bar to prosecution, and without affording the State a recapture period, in

cases involving charges of theft,5 assault,6 drug trafficking,7 armed robbery,8 sex

crimes against children,9 and murder.10

                                   CONCLUSION

      Rule 3.191, as written, protects the defendant’s substantive Sixth

Amendment speedy trial guarantee. I would read and apply the rule as written,

approve the Fourth District’s decision, and avoid the constitutional concerns

inherent in the majority’s contrary decision. If there is a constitutional basis for

this Court to interfere with the legislative branch’s policy decision as reflected in

our statutes of limitation, or to interfere with the executive branch’s role in




      5. Genden v. Fuller, 648 So. 2d 1183 (Fla. 1994); Pearson v. State, 18 So.
3d 645 (Fla. 1st DCA 2009); State v. Hurley, 760 So. 2d 1127 (Fla. 4th DCA
2000).
       6. Williams v. State, 946 So. 2d 1163 (Fla. 1st DCA 2006); Von Waldner v.
State, 860 So. 2d 1061 (Fla. 5th DCA 2003).
      7. Griggs v. State, 994 So. 2d 1198 (Fla. 5th DCA 2008).
      8. Reed v. State, 649 So. 2d 227 (Fla. 1995); Trainer v. Broome, 666 So. 2d
1019 (Fla. 4th DCA 1996).
      9. Hernandez v. State, 513 So. 2d 155 (Fla. 2d DCA 1987).
      10. Butler v. State, 84 So. 3d 419 (Fla. 5th DCA 2012); Walden v. State,
979 So. 2d 1206 (Fla. 4th DCA 2008).

                                          - 37 -
enforcing the law within the substantive framework set forth by the Legislature, I

cannot find it.

CANADY, C.J., concurs.

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

      Fourth District - Case No. 4D15-4853

      (Broward County)

A. Randall Haas, Fort Lauderdale, Florida,

      for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Celia Terenzio, Bureau
Chief, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach,
Florida,

      for Respondent




                                       - 38 -
