        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                           STATE OF FLORIDA,
                               Petitioner,

                                      v.

                      TASHANE M. CHANTILOUPE,
                            Respondent.

                               No. 4D18-162

                               [June 6, 2018]

    Petition for writ of prohibition or certiorari to the Circuit Court for the
Fifteenth Judicial Circuit, Palm Beach County; John S. Kastrenakes,
Judge; L.T. Case No. 502017CF006914AXXXMB.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Leslie T.
Campbell, Assistant Attorney General, West Palm Beach, for petitioner.

  Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant
Public Defender, West Palm Beach, for respondent.

KUNTZ, J.

    The State petitions for a writ of prohibition or a writ of certiorari to
quash the circuit court’s order refusing to allow it to file an untimely notice
of intent to seek the death penalty. We agree with the State that the circuit
court incorrectly concluded it lacked authority to enlarge the forty-five-day
deadline to file a notice of intent to seek the death penalty. But, based on
the specific facts of this case, we cannot conclude the circuit court
departed from the essential requirements of the law when it declined to
exercise its discretion and grant the State’s request for extension. Thus,
we deny the petition.

                                Background

   The Palm Beach State Attorney’s Office indicted the Defendant on
charges of first-degree murder with a firearm and being a felon in
possession of a firearm. The date of his arraignment was August 18, 2017,
which is critical to the resolution of this petition because both section
982.04(1)(b), Florida Statutes (2017), and Florida Rule of Criminal
Procedure 3.181, allow the State forty-five days from the date of
arraignment to file a notice of intent to seek the death penalty.

   Fifty-six days after arraignment, the Defendant moved to preclude the
State from seeking the death penalty. The State responded three days
later by moving for leave to file a notice to seek the death penalty. In its
four-paragraph motion, the State listed two aggravating factors, which
included a prior conviction and evidence that the Defendant planned his
acts in advance. The State also asserted that “[i]t has been approximately
59 days since the Defendant’s arraignment on these charges. Discovery
has just begun and no depositions have been taken of any witness. The
Defendant is not prejudiced by the delay of 14 days.” In other words, the
State provided no basis for the extension, nor any cause for failing to seek
the extension until after the deadline had passed.

   The court held a hearing on the competing motions. It pointed out that
the State knew of the two aggravating factors upon which it sought leave
at the time of indictment. The State asked for additional time to file a
supplemental memorandum because, they stated, “it’s an important issue,
and the language is really odd in the statute.” After a colloquy, the court
responded, stating “unless they can show excusable neglect, and perhaps
you could argue, judge, excusable neglect in this case, but you haven’t
made that. And I don’t think ‘I’m continuing my investigation’ is excusable
neglect.” Nevertheless, the court ultimately allowed the State additional
time to file a supplemental memorandum.

   The supplemental memorandum was filed as the State’s motion to deny
defendant’s motion to preclude the State from seeking the death penalty.
While acknowledging it was untimely, the State argued there would be no
prejudice to the Defendant:

      The defendant asks this Court to impose the harshest
      punishment available, i.e., prohibit the State from seeking the
      appropriate sentence of death in this case simply because the
      state filed its Notice To Seek The Death Penalty fourteen days
      late. The State acknowledges that pursuant to Fla. Stat. §
      782.04(1)(b) and Fla. R. of Crim. Pro. 3.181, the Notice is
      untimely, however, the two-week delay has not in any way
      prejudiced the defendant, nor has it violated any of his
      constitutional rights.

This five-page memorandum, like the original four-paragraph motion,
failed to provide a reason to extend the deadline and focused on the legality
of extending the forty-five-day deadline.

                                     2
   The court held a continued hearing after the State filed its
supplemental memorandum, at which time the State raised excusable
neglect for the first time:

      [Assistant State Attorney]: One of the things I wanted to put
      on the record, although we didn’t plead it, is you mentioned
      early in the week about excusable negligence.

      THE COURT: Excusable neglect.

      [Assistant State Attorney]: Neglect, I’m sorry. That I didn’t
      argue that, but I know that the court knows in that 45 days
      immediately following the arraignment, this courthouse was
      shut down because we suffered a hurricane. And then -

      THE COURT: So I can give you those extra six days or
      whatever.

                                     ...

      [Assistant State Attorney]: And then the day after the
      hurricane before the courthouse was even reopened, I left the
      country for two weeks. I didn’t plead that.

   On excusable neglect, the court orally found that it appeared “the
prosecutor forgot the time line or forgot” and that “even with the good faith
exception, I would find against you, in this, under the facts of this case.”
In other words, even if the court believed it had the authority to extend the
deadline it would not have done so because it did not think that the State
had shown good cause or excusable neglect.

   The court took the issue under advisement to allow it time to review the
State’s supplemental memorandum. The court then issued a detailed
order granting the Defendant’s motion to preclude the State from seeking
the death penalty and denying the State’s motion for enlargement. The
State filed this petition for writ of prohibition or certiorari asking that we
quash the court’s order.

                                  Analysis

   The State seeks the issuance of a writ of prohibition or, alternatively, a
writ of certiorari. We begin our analysis with the standard of review
applicable to each. Second, we consider the evolution and the language of


                                      3
the governing statute and rule. Third, we apply the statute and rules and
hold the court incorrectly concluded it lacked jurisdiction to extend the
deadline. Fourth, we consider whether the court departed from the
essential requirements of the law when it declined to exercise its discretion
to extend the deadline and conclude the court did not.

                         1. Standard of Review

   “The state attorney has complete discretion in making the decision to
charge and prosecute.” Cleveland v. State, 417 So. 2d 653, 654 (Fla.
1982). A writ of prohibition is appropriate if a trial court interferes with
the prosecutor’s discretion by refusing to allow a first-degree murder
prosecution to proceed as a capital case. State v. Bloom, 497 So. 2d 2, 3
(Fla. 1986) (“A writ of prohibition is the appropriate remedy when a trial
court attempts to interfere with the prosecutorial discretion of a state
attorney.”); see also State v. Lopez, 219 So. 3d 865 (Fla. 4th DCA 2017).

   A writ of certiorari may also be appropriate to review certain “non-final
orders of lower tribunals other than as prescribed by rule 9.130.” Fla. R.
App. P. 9.030(b)(2)(A). The “extraordinary writ is reserved for those
situations where there has been a violation of a clearly established
principle of law resulting in a miscarriage of justice.” State v. Pettis, 520
So. 2d 250, 254 (Fla. 1988). A petition for writ of certiorari requires the
State to establish the court departed from the essential requirements of
the law in a way that results in material injury to the remainder of the case
and that cannot be remedied on post-judgment appeal. See, e.g., State v.
Pettis, 520 So. 2d 250, 253 (Fla. 1988); Lake v. State, 193 So. 3d 932, 933
(Fla. 4th DCA 2016).

  2. Rule 3.202(a), Rule 3.181, and Section 782.04(1)(b), Florida
 Statutes: The Forty-Five-Day Deadline to File a Notice of Intent to
                      Seek the Death Penalty

   In 1995, the Florida Supreme Court enacted Florida Rule of Criminal
Procedure 3.202(a), which stated:

      (a) Notice of Intent to Seek Death Penalty. The provisions of
      this rule apply only in those capital cases in which the state
      gives written notice of its intent to seek the death penalty
      within 45 days from the date of arraignment. Failure to give
      timely written notice under this subdivision does not preclude
      the state from seeking the death penalty.

Amendments to Fla. Rule of Criminal Procedure 3.220 Discovery, 674 So.

                                     4
2d 83, 84 (Fla. 1995). This rule remained in place until 2016 when the
Supreme Court of the United States found Florida’s “sentencing scheme”
unconstitutional. Hurst v. Florida, 136 S. Ct. 616, 624 (2016).

    As a result of Hurst, the legislature amended Florida’s capital-
punishment statute. The legislature codified a requirement that the State
file a notice of intent to seek the death penalty:

      (b) In all cases under this section, the procedure set forth in
      s. 921.141 shall be followed in order to determine sentence of
      death or life imprisonment. If the prosecutor intends to seek
      the death penalty, the prosecutor must give notice to the
      defendant and file the notice with the court within 45 days
      after arraignment. The notice must contain a list of the
      aggravating factors the state intends to prove and has reason
      to believe it can prove beyond a reasonable doubt. The court
      may allow the prosecutor to amend the notice upon a showing
      of good cause.

Ch. 2016-13, § 2, Laws of Fla. (enacting § 782.04(1)(b), Fla. Stat. (2016)).
The statute provides that a notice of intent to seek the death penalty must
be filed within forty-five days after arraignment. In other words, the
legislative enactment incorporated Rule 3.202(a) into the Florida Statutes.

   After the legislature enacted section 782.04(1)(b), the Florida Supreme
Court amended the rules. It amended Rule 3.202 and added new Rule
3.181. In In re Amendments to Florida Rules of Criminal Procedure, 200
So. 3d 758, 759 (Fla. 2016), the court stated that the amendments
“implement chapter 2016–13, section 2, Laws of Florida.” The court’s
opinion also noted that the changes included the “removal [of] language
from existing rule 3.202(a) in order to avoid possible conflict with the
statute and new rule.” Id. The Appendix to the court’s opinion shows the
amendments to Rule 3.202 and new Rule 3.181:

                                APPENDIX

      RULE 3.181. NOTICE TO SEEK DEATH PENALTY

      In a prosecution for a capital offense, if the prosecutor intends
      to seek the death penalty, the prosecutor must give notice to
      the defendant of the state's intent to seek the death penalty.
      The notice must be filed with the court within 45 days of
      arraignment. The notice must contain a list of the aggravating
      factors the state intends to prove and has reason to believe it

                                     5
      can prove beyond a reasonable doubt. The court may allow
      the prosecutor to amend the notice upon a showing of good
      cause.

                                    [...]

      RULE 3.202. EXPERT TESTIMONY OF MENTAL
      MITIGATION DURING PENALTY PHASE OF CAPITAL
      TRIAL; NOTICE AND EXAMINATION BY STATE EXPERT

      a) Notice of Intent to Seek Death Penalty. The provisions of
      this rule apply only in those capital cases in which the state
      gives timely written notice of its intent to seek the death
      penalty within 45 days from the date of arraignment. Failure
      to give timely written notice under this subdivision does not
      preclude the state from seeking the death penalty.

      (b)–(e) [No Change]

Id. at 759-60. 1

3. A Court May Extend the State’s Forty-Five-Day Deadline to File a
            Notice of Intent to Seek the Death Penalty

   With this foundation set, we now determine whether a trial court may
extend the deadline imposed by section 782.04(1)(b), Florida Statutes
(2017), and Florida Rule of Criminal Procedure 3.181. “The interpretation
of a statute is a purely legal matter and therefore subject to the de novo
standard of review.” Kasischke v. State, 991 So. 2d 803, 807 (Fla. 2008);
see also State v. Nelson, 26 So. 3d 570, 573–74 (Fla. 2010) (applying de
novo review to the Florida Rules of Criminal Procedure).

    “Substantive law prescribes the duties and rights under our system of
government. . . . Procedural law concerns the means and method to apply
and enforce those duties and rights.” Benyard v. Wainwright, 322 So. 2d
473, 475 (Fla. 1975). Generally, substantive rules fall under the authority
of the legislature; whereas procedural rules relating to the court system
are within the authority of our supreme court. That said, the legislature
can repeal any rule of court by a two-thirds vote. Art. V, § 2, Fla. Const.
(“Rules of court may be repealed by general law enacted by two-thirds vote
of the membership of each house of the legislature.”); see also State v.

1 “New language is indicated by underscoring; deletions are indicated by struck-
through type.” Id. at 759.

                                       6
Raymond, 906 So. 2d 1045, 1051 (Fla. 2005) (“Although the Legislature
may repeal a court procedural rule, it cannot create a new procedural rule
by statute.”).

   Time limits and requirements fall into both categories. Some time limits
are procedural, while others are substantive. Splash & Ski, Inc. v. Orange
Cty., 596 So. 2d 491, 495 (Fla. 5th DCA 1992). For example, the power to
establish time limitations for bringing some actions resides with the
legislature. See, e.g., § 775.15, Fla. Stat. (2017). But when the legislature
intends a time bar to be jurisdictional, it generally states as much. See,
e.g., § 194.171(2), Fla. Stat. (2017). Here, in section 782.04(1)(b), the
legislature did not expressly state that it intended the forty-five-day time
limit to be a substantive bar on seeking the death penalty. Nor did the
legislature repeal the then-existing provisions of Rules 3.050 and 3.202,
which permitted an enlargement of time. Because no party asserts the
time limit is within the exclusive authority of either branch, we evaluate
each and assume both to be valid.

    First, the statute. Section 782.04(1)(b) appears to require the state file
a timely notice of intent. It specifically allows the state to amend a notice
but it neither provides a procedure for obtaining an extension, nor does it
prohibit seeking an extension. It should be noted that other substantive
statutes that authorize the state to seek the death penalty do not do so,
either. See, e.g., §§ 775.082, 921.141(1), Fla. Stat. (2017).

    Second, we turn to Rule 3.181. Again, our supreme court enacted this
rule after the legislature codified section 782.04(1)(b). While Rule 3.181
provides no mechanism for seeking an enlargement of time to file a notice
of intent to seek the death penalty, it also does not prohibit enlarging the
deadline.

    The State argues this lack of a prohibition in section 782.04(1)(b) and
Rule 3.181 means enlarging the deadline is permissible. It relies on
Massey v. State, 609 So. 2d 598, 600 (Fla. 1992), where our supreme court
found the failure to comply with the notice requirements for habitual
felony offender sentencing to be harmless. It also points to other situations
in which mandatory notice requirements have not been strictly applied.
State v. Naveira, 873 So. 2d 300, 308 (Fla. 2004); Small v. State, 630 So.
2d 1087, 1088–89 (Fla. 1994). We note that a statute may present a
mandatory but non-jurisdictional deadline. State v. Goode, 830 So. 2d
817, 828 (Fla. 2002) (holding that time limit for bringing a defendant to
trial in a Jimmy Ryce civil commitment proceeding was mandatory but not
jurisdictional).


                                      7
    The Defendant attempts to distinguish these cases. He argues in
Massey “habitual offender sentencing is a simple matter involving no
hugely expensive investigations and litigation or extended hearings, so
that the state may serve the notice any time before the sentencing hearing.
Hence, there is no need for the notice to be served early in the case.” As
for Naveira, he states “in that case the supreme court ruled that the time
periods in the speedy trial rule must be applied strictly. It wrote that the
rule does not incorporate the reasonableness and prejudice standards
which apply to the constitutional speedy trial provision.” (emphasis
omitted). The Defendant also generally addresses many of the other cases
the State relies on, arguing that the cases are “beside the point” and that
here “we are concerned with the death penalty statute, an area uniquely
within the ambit of the Legislature.”

   We think the conclusion is simpler. And it is found in a different rule.
Florida Rule of Criminal Procedure 3.050, which applies to all of the
Florida Rules of Criminal Procedure, establishes a rule for enlarging
deadlines:

      When by these rules or by a notice given thereunder or by
      order of court an act is required or allowed to be done at or
      within a specified time, the court for good cause shown may,
      at any time, in its discretion (1) with or without notice, order
      the period enlarged if a request therefor is made before the
      expiration of the period originally prescribed or extended by a
      previous order or (2) upon motion made and notice after the
      expiration of the specified period, permit the act to be done
      when the failure to act was the result of excusable neglect; but
      it may not, except as provided by statute or elsewhere in these
      rules, extend the time for making a motion for new trial, for
      taking an appeal, or for making a motion for a judgment of
      acquittal.

   This rule provides the trial courts with broad discretion to extend any
deadline imposed by the rules, except for specifically-enumerated
exceptions. Our supreme court has applied Rule 3.050 to extend
deadlines in other rules not specifically excluded from the rule. Davis v.
State, 887 So. 2d 1286, 1289 (Fla. 2004); see State v. Boyd, 846 So. 2d
458 (Fla. 2003); Abreu v. State, 660 So. 2d 703 (Fla. 1995).

   The deadline to file a notice of intent to seek the death penalty is not a
specifically-enumerated exception. Thus, the court incorrectly concluded
that it lacked the authority to extend the deadline. We hold that Rule


                                     8
3.050 provides authority for a circuit court to extend the deadline to file a
notice of intent to seek the death penalty.

 4. The Court Did Not Depart From the Essential Requirements of
the Law When it Denied The State’s Motion to Enlarge the Deadline
        to File a Notice of Intent to Seek the Death Penalty

   Despite our conclusion that the circuit court here had the authority to
extend the deadline, the State’s petition must still be denied unless the
court departed from the essential requirements of the law when it denied
the State’s motion.

   Before addressing the court’s decision, we again present the various
events at issue chronologically:

      •   August 3, 2017 – Indictment;
      •   August 18, 2017 – Arraignment;
      •   September 7-13, 2017 – Fifteenth Circuit closed because
          of Hurricane Irma;
      •   October 2, 2017 – Deadline for State to file notice of intent
          to seek death penalty;
      •   October 13, 2017 – Defendant’s motion to preclude the
          State from seeking the death penalty;
      •   October 16, 2017 – State’s motion for leave of court to file
          and to seek the death penalty;
      •   October 16, 2017 – State’s notice of intent to seek death
          penalty;
      •   October 23, 2017 – Hearing held;
      •   October 27, 2017 – State’s motion to deny Defendant’s
          motion to preclude State from seeking the death penalty;
      •   October 27, 2017 – Hearing continued; and
      •   December 15, 2017 – Order precluding State from seeking
          the death penalty.

    It is undisputed that the deadline here expired before the State sought
to enlarge it. And after the deadline “has expired, rule 3.050 allows a trial
judge to permit the untimely filing of a motion upon a showing of ‘good
cause,’ ‘when the failure to act was the result of excusable neglect.’ Before
the expiration of the [time] period, a defendant must show only ‘good

                                      9
cause.’” Parker v. State, 907 So. 2d 694, 695 (Fla. 4th DCA 2005) (quoting
State v. Boyd, 846 So. 2d 458 (Fla. 2003)). Thus, the burden on the
movant is more stringent when seeking to enlarge a deadline that has
already lapsed. Id.

    Our understanding of Rule 3.050 and the additional requirements on a
movant seeking to enlarge a lapsed deadline is consistent with our
supreme court’s recent discussion of the analogous civil rule, Florida Rule
of Civil Procedure 1.090. Koppel v. Ochoa, 43 Fla. L. Weekly S225 (Fla.
May 17, 2018). In Koppel, the supreme court explained that “Rule 1.090
allows for the time period set forth in [other rules] to be enlarged, but this
enlargement is at the trial court’s discretion if the motion was filed before
expiration of the time period and cause has been shown.” Id. But, the
court stated, “[a]fter the time period has expired, the trial court still has
discretion to enlarge the time period if the moving party can demonstrate
excusable neglect in addition to cause.” Id.

   Because it sought to enlarge a lapsed deadline, the State needed to
establish both good cause and excusable neglect. The State made two
arguments in its motion for leave, which we presume to be an attempt to
show good cause. Its four-paragraph motion listed two aggravators,
including a prior conviction and evidence that the Defendant planned his
acts in advance. But, as the court found in its order, “at the hearings, the
State acknowledged that it was in possession of the evidence supporting
the two aggravating circumstances alleged in its Notice at the time it
returned its Indictment against” the Defendant.

   The State conceded to the circuit court that it made no arguments
about excusable neglect in its written motion. 2 The State did make two
oral arguments at the hearing directed to excusable neglect: first, the effect
of Hurricane Irma; and second, and in passing, a two-week trip counsel
began before the court reopened after Hurricane Irma.

   First, the State argued that the court should have enlarged the deadline
based on the effect of Hurricane Irma. Indeed, Hurricane Irma caused
serious impact throughout the State of Florida, but the Florida Supreme
Court’s tolling order relating to Hurricane Irma for the Fifteenth Judicial
Circuit extended deadlines from September 6, 2017 until September 14,
2017. The order specifically states that “the extension of time periods

2 To extend a lapsed deadline, Rule 3.050 requires a motion and notice. On the
other hand, to extend a deadline that has not yet lapsed, Rule 3.050 specifically
states that notice is not required. We assume for purposes of this opinion that
the State’s failure to address excusable neglect in its motion was not dispositive.

                                        10
under this order shall apply only when the last day of those periods falls
within the time extended.” The tolling order does provide a potential
remedy for other deadlines not met because of the hurricane, stating “[i]f
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 requisite time periods was directly attributable to this
emergency and that equitable remedy is required.”

   Here, the State did not seek to establish the failure to file the notice
was directly attributable to Hurricane Irma. The State did not even
mention the hurricane in its motion. Not until the court asked about
excusable neglect did the State raise the hurricane as a potential reason.
In any event, Hurricane Irma caused a closure of the Fifteenth Judicial
Circuit from “Thursday, September 7, 2017, through Wednesday,
September 13, 2017.” The deadline to file the notice of intent did not run
until nineteen days after the court had reopened.

   Second, at the continued hearing, counsel for the State stated that “the
day after the hurricane before the courthouse was even reopened, I left the
country for two weeks. I didn’t plead that.” Based on counsel’s statement,
she returned well before the deadline to file the notice. Even so, this
argument was not raised in a motion or argued at the hearing. It was
merely a comment in passing and one upon which the State did not
otherwise rely.

   Our supreme court has explained good cause as “a substantial reason,
one that affords a legal excuse, or a cause moving the court to its
conclusion, not arbitrary or contrary to all the evidence, and not mere
ignorance of law, hardship on petitioner, and reliance on another’s advice.”
State v. Boyd, 846 So. 2d 458, 460 (Fla. 2003) (quotation omitted). Here,
the State’s motion to enlarge the deadline contained no assertion of
excusable neglect nor good cause. Thus, we cannot conclude that the
court departed from the essential requirements of the law when it
determined the State failed to meet its burden and denied the State’s
motion for an extension to file the belated notice of intent to seek the death
penalty.

                                Conclusion

   To grant the State’s petition and quash the circuit court’s order, we
must accept both arguments presented by the State: first, that the court
improperly concluded it lacked the authority to extend the deadline for the
State to file a notice of intent to seek the death penalty; and second, the
court erred in refusing to extend the deadline.

                                     11
    First, we agree with the State that a court may extend the deadline to
file a notice of intent to seek the death penalty. Section 782.04(1)(b), Fla.
Stat. (2017) and Florida Rule of Criminal Procedure 3.181 (2017) require
the state to file a notice of intent to seek the death penalty within forty-five
days of arraignment. But Florida Rule of Criminal Procedure 3.050 (2017)
allows a court to extend the forty-five-day deadline.

    Second, we conclude the court did not depart from the essential
requirements of the law when it concluded that “the State has failed to
allege a good faith delay, excusable neglect, or any other circumstances
which justify the filing of the Notice more than 45 days after the date of
arraignment.”

   Because the court did not depart from the essential requirements of the
law when it denied the State’s motion for extension, the petition is denied.

   Petition denied.

TAYLOR and CONNER, JJ., concur.

                             *         *         *

   Not final until disposition of timely filed motion for rehearing.




                                      12
