       Third District Court of Appeal
                               State of Florida

                        Opinion filed September 20, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D17-2065
                         Lower Tribunal No. 17-15894
                             ________________

                               Leslie B. Nelson,
                                    Petitioner,

                                        vs.

                         Daniel Junior, etc., et. al.,
                                   Respondent.



      An Appeal from the Circuit Court for Miami-Dade County, Stephen T.
Millan, Judge.

      Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant
Public Defender, for petitioner.

     Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney
General, for respondent.


Before EMAS, LOGUE and LINDSEY, JJ.


      LINDSEY, J.
      Leslie Nelson (“Petitioner”) petitions this Court to issue a writ of habeas

corpus and order his release from custody on the ground that the State’s failure to

file an information within forty days of his arrest entitles him to release on his own

recognizance.     Following Hurricane Irma, and in accordance with an

administrative order issued by the Florida Supreme Court, In re: Closure of Fla.

State Courts in Preparation for Hurricane Irma, Order No. AOSC17-46 (Fla. Sup.

Ct. Sept. 6, 2017), the trial court extended the time period by which the State is

required to file an information on Nelson, who remains in custody. For the reasons

set forth below, we deny the Emergency Petition for Writ of Habeas Relief.

I.    BACKGROUND

      Nelson, a Pennsylvania resident, was arrested in Miami Beach, Florida on

August 9, 2017. Nelson was charged with four counts: 1) Possession of less than

twenty grams of marijuana; 2) Possession of cocaine; 3) Possession of cocaine

with intent to sell or deliver; and 4) Possession of marijuana with the intent to sell

or deliver.

      Courts in Miami-Dade County closed on September 7, 2017 and reopened

on September 18, 2017 due to Hurricane Irma. As of September 18, 2017, the

State had not filed an information. During a hearing on September 18, 2017, the

State requested additional time and explained that due to Hurricane Irma, the crime

lab analyzing the drugs at issue was backlogged and unable to complete the


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requisite analysis by the 40th day. The State also argued that because the 33rd day

fell within the window of the Administrative Order, September 18, 2017 no longer

constituted the 40th day. In response, Petitioner argued that the Administrative

Order was inapplicable because it specified that the extensions apply only when

the last day – which they claimed was the 40th day, September 18, 2017 – falls

within the time extended. Petitioner also argued that even if the State’s reason for

failing to file an information constituted good cause, the fact that no information

had been filed by the 40th day meant that he was entitled to be released regardless

of the reason for delay.

      The trial court denied Petitioner’s request for release on his own

recognizance, found that the State had provided good cause for its failure to

formally charge Petitioner by the 40th day, and allowed the State until September

25, 2017 to file an information. The trial court found good cause based on the

storm, “the fact that there was no power to [the crime lab] those facilities” and

based on the fact that “the Court system has been shut down basically for the last

10 to 15 days.” The trial court found that “at least under the Supreme Court order

that five of [the last ten or eleven days that the facilities were shut down] were

covered and actually perhaps seven.” The trial court intended to grant the State

five additional days after the hearing to file an information. However, because

September 23, 2017 falls on a Saturday, the trial court reset it for September 25,


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2017.

        This Emergency Petition for Writ of Habeas Relief follows.

II.     JURISDICTION

        This Court has original jurisdiction to issue writs of habeas corpus under

Article V, § 4 (b)(3), Fla. Const. and Fla. R. App. P. 9.030(b)(3).

III.    ANALYSIS

        Rule 3.134 of the Florida Rules of Criminal Procedure, which prescribes the

time for filing formal charges, provides:

              The state shall file formal charges on defendants in
              custody by information, or indictment . . . within 30 days
              from the date on which the defendants are arrested or
              from the date of the service of capiases upon them. If the
              defendants remain uncharged, the court on the 30th day
              and with notice to the state shall:
                    (1) Order that the defendants automatically be
                    released on their own recognizance on the 33rd
                    day unless the state files formal charges by that
                    date; or
                    (2) If good cause is shown by the state, order that
                    the defendants automatically be released on their
                    own recognizance on the 40th day unless the state
                    files formal charges by that date.
              In no event shall any defendants remain in custody
              beyond 40 days unless they have been formally
              charged with a crime.

Fla. R. Crim. P. 3.134 (emphasis added). Thus, for purposes of Rule 3.134, the

30th day would have fallen on September 8, 2017, the 33rd day would have fallen

on September 11, 2017, and the 40th day would have fallen on September 18, 2017.


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        However, on September 6, 2017, the Florida Supreme Court issued

Administrative Order No. SC17-46 governing the closure of Florida state courts in

preparation for Hurricane Irma. The Administrative Order states, in pertinent part,

that:

             2. Statewide, all time limits prescribed or allowed by rule
             of procedure, court order, statutes applicable to court
             proceedings, or otherwise pertaining to court proceedings
             are extended from the close of business on Thursday,
             September 7, 2017, until the close of business on
             Monday, September 11, 2017.

             ....

             4. The extension of time periods under this order shall
             apply only when the last day of those periods falls within
             the time extended. The suspension of time limits under
             the speedy trial procedure restores additional days equal
             to the number stated herein.

             5. This Court recognizes that there may be instances
             where, because of this emergency, these and other
             time limits applicable to matters in the state courts
             could not be met even upon application of the periods
             stated above. If such a claim is made, it shall be
             resolved by the court in which jurisdiction is vested
             on a case-by-case basis when a party demonstrates
             that the lack of compliance with the requisite time
             periods was directly attributable to this emergency
             and that equitable remedy is required.

In re: Closure of Fla. State Courts in Preparation for Hurricane Irma, Order No.

AOSC17-46 (Fla. Sup. Ct. Sept. 6, 2017) (emphasis added).1

1 Although not necessary to our decision, we note that the Florida Supreme Court,
in a subsequent Administrative Order, increased the extension of time period from

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      The trial court found good cause resulting from Hurricane Irma related

closures. As instructed by the Administrative Order, we review on a case-by-case

basis the claim that because of this emergency, the time limits could not be met

even upon application of the periods stated in the Administrative Order. Here, the

State’s inability to comply with the requisite time periods was directly attributable

to this emergency, as the court system and crime lab facilities were shut down for

11 days as a result of Hurricane Irma. Accordingly, the equitable remedy of an

extension of time, as expressly authorized by the Administrative Order, was

appropriate. The trial court merely extended the deadline for the State to file an

information by five days, excluding the weekend.

IV.   CONCLUSION

      Accordingly, in light of the Administrative Order and the trial court’s

finding of good cause, we deny the Emergency Petition for Writ of Habeas Corpus.

      Denied.




“the close of business on Tuesday, September 5, 2017, until the close of business
on Monday, September 18, 2017.” In re: Emergency Request to Extend Time
Periods under all Fla. Rules of Procedure for Miami-Dade County in the Eleventh
Judicial Circuit, Order No. AOSC17-71 (Fla. Sup. Ct. Sept. 19, 2017) (emphasis
added).

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