       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          STATE OF FLORIDA,
                              Appellant,

                                    v.

                            JOHN TELUCIEN,
                               Appellee.

                              No. 4D16-277

                           [ August 16, 2017 ]


   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Raag Singhal, Judge; L.T. Case No. 15-10630 CF10A.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven
Ocksrider, Assistant Attorney General, West Palm Beach, for appellant.

   Roger Cabrera of Roger Cabrera, P.A., Miami, for appellee.

                      ON MOTION FOR REHEARING

PER CURIAM.

  We grant the state’s motion for rehearing, withdraw our prior opinion,
and substitute the following in lieu thereof.

   The state appeals from a final order granting the defendant’s motion for
speedy trial discharge. The state argues that the defendant’s motion for
continuance on a misdemeanor charge waived his right to a speedy trial
on the felony charge, which was filed outside of the 175-day speedy trial
but arose from the same criminal episode. We agree and reverse the
discharge order.

   The defendant was arrested on July 30, 2014, on a complaint charging
him with one count of felony child abuse and one count of misdemeanor
battery. The charges stemmed from his alleged texting relationship and
physical contact with a minor who attended the summer camp where the
defendant worked as a counselor. On August 27, 2014, the state filed a
“no information” on both charges. On October 27, 2014—just one day
before the expiration of the speedy trial period for a misdemeanor—the
state filed an information as to the misdemeanor battery charge.

   On January 29, 2015, the defendant requested and received a
continuance. On August 18, 2015, the state “up-filed” or amended its
information, charging the defendant with a felony count of lewd and
lascivious conduct. The new felony charge arose from the same conduct
for which the defendant was initially arrested, but it was not filed until
209 days after the speedy trial period for a felony had expired. About a
month later, the state entered a nolle prosequi on the misdemeanor
charge.

    The defendant filed a motion to discharge pursuant to Florida Rule of
Criminal Procedure 3.191(a), contending that he was entitled to discharge
because the information was filed 384 days after the defendant’s initial
arrest and 209 days after the expiration of the 175-day speedy trial period
established in rule 3.191. The state opposed the motion, arguing that the
defendant’s prior continuance and speedy trial waiver in the misdemeanor
case waived his speedy trial rights in the felony case as well. The trial
court determined that, because the defendant did not waive his speedy
trial rights until after the 175-day speedy trial period for a felony had
expired, the post-expiration continuance was a nullity. Accordingly, the
court ruled that the state was not entitled to the recapture period and
granted the defendant’s motion for speedy trial discharge.

   The standard of review of a trial court’s order discharging a defendant
on speedy trial grounds is de novo. State v. Nelson, 26 So. 3d 570, 573-74
(Fla. 2010).

    Florida Rule of Criminal Procedure 3.191 is the procedural mechanism
by which a defendant can assert the right to a speedy trial. The speedy
trial rule provides that a defendant must be brought to trial within ninety
(90) days of being arrested if the crime charged is a misdemeanor, and
within 175 days of being arrested if the crime charged is a felony. Fla. R.
Crim. P. 3.191(a). If the defendant is not tried within these time frames,
he or she is entitled to enforce the right to a speedy trial by filing a Notice
of Expiration of Speedy Trial. Fla. R. Crim. P. 3.191(a) & (p). The notice
triggers the requirement that the court hold a hearing within five (5) days.
Fla. R. Crim. P. 3.191(h) & (p)(3). If the court determines that none of the
reasons set forth in rule 3.191(j) exist to justify delay in bringing the
defendant to trial, the court must order that the defendant be brought to
trial within ten (10) days. Fla. R. Crim. P. 3.191(p)(3). Failure of the state
to bring the defendant to trial within the recapture period entitles
defendant to discharge from the crime. Id.

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   The issue in this case is whether the state is entitled to a recapture
period in the felony lewd and lascivious conduct case where the
defendant’s waiver of his speedy trial rights in the related misdemeanor
case occurred after the 175-day period for filing a felony charge.

    In its written order 1 granting the defendant’s motion for discharge, the
trial court concluded that, because the state failed to file felony charges
until 384 days after his arrest, and because the defendant did not waive
his speedy trial rights until after the 175th day, the post-expiration
continuance was a nullity. In so ruling, the court relied on a “trilogy of
Florida Supreme court cases,” which addressed the effect of the state’s
failure to file charges before expiration of the speedy trial period upon the
state’s right to the recapture provisions. See State v. Agee, 622 So. 2d 473
(Fla. 1993); Genden v. Fuller, 648 So. 2d 1183 (Fla. 1994); State v.
Williams, 791 So. 2d 1088 (Fla. 2001). The trial court summarized the
holding in these cases as follows:

         The Florida Supreme Court in State v. Agee, 622 So. 2d
      473 (Fla. 1993) addressed the effect of a nolle prosequi on the
      speedy trial requirements. The court noted that allowing the
      State to unilaterally toll the running of the speedy trial period
      by entering a nolle prosequi, would eviscerate the speedy trial
      rule. It would make it possible for a prosecutor with a weak
      case to enter a nolle prosequi while strengthening the case
      and refiling the “charges based on the same criminal episode
      months or even years later, thus effectively denying an
      accused the right to a speedy trial.” Id. at 475. The court held
      that “when the State enters a nol pros (sic), the speedy trial
      period continues to run and the State may not refile charges
      based on the same conduct after the period has expired.” Id.

          The holding in Agee was extended to situations in which
      the state has announced a “no action” rather than a nolle
      prosequi. In Genden v. Fuller, 648 So. 2d 1183 (Fla. 1994),
      the Florida Supreme Court held that the speedy trial period
      “continues to run when the state voluntarily terminates
      prosecution before formal charges are filed and the State may
      not file charges based on the same conduct after the speedy
      trial period has expired.” Id. at 1185. The court further found
      that there is no legally cognizable difference between the

1The quoted portions of the trial court's order contain minor edits and formatting
alterations.

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   situation in Agee where the state voluntarily terminated
   prosecution after formally charging the defendant and the
   situation in Genden where the state terminated prosecution
   before filing an information. Id. (citing Fuller v. Genden, 630
   So. 2d 1150, 1150 (Fla. 3d DCA 1993)).

       The underlying principle in Agee and Genden was further
   extended by the Florida Supreme Court in State v. Williams,
   791 So. 2d 1088 (Fla. 2001), to circumstances where the state
   failed to act until after the speedy trial period expired. The
   court found that there was no legally cognizable difference
   between the state announcing a “no action,” and the state
   failing to act until after the expiration of the speedy trial
   period. Id. at 1091 (citing Williams v. State, 774 So. 2d 23, 24
   (Fla. 2d DCA 2000)). The court concluded that “[a]s in
   Genden, the state was not entitled to a recapture period under
   rule 3.191.” Id.

       In all three cases, the state’s failure to file charges prior to
   the expiration of the speedy trial period prevented the
   defendant from filing a notice of expiration pursuant to rule
   3.191(p)(2). Because the state’s right to recapture is linked to
   a defendant’s ability to exercise the right to file a notice of
   expiration when the speedy trial period has run, the state was
   not given the benefit of the recapture period either in Agee,
   Genden, or Williams. As explained by the court in State v.
   Clifton, 905 So. 2d 172, 176 (Fla. 5th DCA 2005), the rationale
   behind the rule adopted in Agee and extended to Genden and
   Williams is “based on fairness to the accused and preservation
   of the integrity of the speedy trial rule.” To allow the state to
   proceed with prosecution in cases in which it announces a
   nolle prosequi or no action or where it does nothing to initiate
   prosecution before a defendant can exercise his speedy trial
   rights, would circumvent the purpose of the speedy trial rule.
   Id. at 177.

Applying Agee, Genden, and Williams to this case, the trial court stated:

      In the instant case, the state signaled its intent to
   terminate its prosecutorial efforts as to both the misdemeanor
   and the felony charge when it filed a “no information” on
   August 27, 2014. The state then timely filed an information
   charging Defendant with one count of misdemeanor battery.
   However, the state clearly abandoned its prosecutorial efforts

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      as to the felony charge by failing to formally charge the
      Defendant with a felony during the speedy trial period. Only
      after 209 days from the expiration of the speedy trial period
      for a felony (384 days after arrest) did the state up-file an
      information in circuit court charging Defendant with a second
      degree felony.
                                     ...

          The facts of this case present a scenario similar to that in
      Agee, Genden, and Williams, in which the state lulled the
      Defendant into believing that it was unnecessary for him to
      file a notice of expiration of speedy trial after the 175-day
      speedy trial period for a felony had passed. Thus, the state is
      not entitled to the recapture period. Fairness to the accused
      and the need to preserve the speedy trial rule require that this
      Court grant Defendant’s Motion for Discharge, as it was the
      State’s action that deprived the Defendant of the possibility to
      file a notice of expiration of speedy trial as to the felony charge.
      This Court notes that the outcome would have been different
      had the state not entered a nolle prosequi of the misdemeanor
      charge, because that charge was timely filed and the
      Defendant requested a continuance prior to filing a notice of
      expiration of the applicable speedy trial period.

    We disagree with the trial court’s above reasoning that the defendant’s
post-expiration continuance was a nullity and that the state was not
entitled to the speedy trial rule’s recapture period. Under the facts of this
case, the trial court erroneously relied on the Agee-Genden-Williams line
of cases in concluding that the state abandoned its prosecution of the
felony charge and lulled the defendant into a position where he could not
seek a speedy trial. Here, there was no circumvention of the purpose or
intent of the speedy trial rule. See State v. Clifton, 905 So. 2d 172, 176
(Fla. 5th DCA 2005). The state timely filed a misdemeanor charge against
the defendant, the defendant moved for a continuance (albeit after
expiration of the then-applicable speedy trial period for the misdemeanor),
and the state later amended the information to charge the defendant with
a felony based on the same arrest and conduct.

    In Nelson, the Florida Supreme Court held that when a defendant
requests a continuance before filing a notice of expiration of the speedy
trial period, but after expiration of the speedy trial period, a waiver of the
defendant’s right to speedy trial results on all charges arising from the
same criminal episode, including any newly filed charges arising out of the
incident. 26 So. 3d at 576. Nelson rejected the notion that a post-

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expiration waiver acted as a nullity, which was the main principle upon
which the trial court’s ruling regarding the defendant’s waiver rested. Id.
at 579–80.

    In this case, it is undisputed that the state commenced prosecution
against the defendant through the filing of a misdemeanor information
within the 90-day misdemeanor speedy trial period.                  It is further
undisputed that the defendant obtained a continuance, or waiver, of his
speedy trial rights during the pendency of the case. When the state later
filed felony charges based on the same conduct, the original waiver
continued to act as a waiver as to the felony, despite that it was made after
the speedy trial expiration period for a felony. As Nelson noted, this waiver
is construed as an “ongoing waiver” of speedy trial rights as to all charges
arising out of the incident. See id. at 576; see also McClover v. State, 217
So. 3d 96, 99 (Fla. 4th DCA 2017) (holding that the defendant’s speedy
trial waiver at docket call shortly after her arrest for retail theft at one retail
store applied to new charges for retail theft at a second store, which were
filed more than 175 days after the initial arrest, where the charges arose
from that same arrest); Wallace v. State, 189 So. 3d 1022, 1026–28 (Fla.
3d DCA 2016) (holding that the defendant-wife waived her speedy trial
rights prior to the superseding indictment and continuation of the
prosecution did not violate her right to a speedy trial); Morris v. State, 715
So. 2d 1177, 1178–79 (Fla. 4th DCA 1998) (holding that the defendant’s
waiver of speedy trial rights with respect to a misdemeanor battery charge
carried over to the amended felony battery information where both charges
were based on the same criminal episode).

    In State v. Born-Suniaga, 42 Fla. L. Weekly D1016, 2017 WL 1718845
(Fla. 4th DCA May 3, 2017), we recently undertook a comprehensive review
of Florida Rule of Criminal Procedure 3.191, Nelson, State v. Naveira, 873
So. 2d 300 (Fla. 2004), and other cases applying the speedy trial rule. In
Born-Suniaga, we noted how the case law governing speedy trial has
changed since the rules were amended to provide the state with a
recapture period. 2017 WL 1718845, at *4. We explained that the speedy
trial rule is not self-executing and does not allow for an automatic
discharge if the defendant is not tried within the applicable speedy trial
period. Id. Instead, once the speedy trial period has expired, a defendant
must file a “Notice of Expiration of Speedy Trial,” triggering the recapture
period for the state. Id. Here, the defendant never filed a notice of
expiration of speedy trial. Instead, he filed only a motion to discharge,
which as we recognized in Born-Suniaga, was not sufficient to invoke his
rights under the current speedy trial rule.

   Based on the foregoing, we reverse the trial court’s order granting the

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defendant’s motion for discharge and remand for further proceedings.

  Reversed and Remanded for further proceedings.

TAYLOR, LEVINE and CONNER, JJ., concur.




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