            DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                             DONALD BUHLER,
                                Petitioner,

                                       v.

                           STATE OF FLORIDA,
                              Respondent.

                               No. 4D17-3324

                               [May 16, 2018]

   Petition for writ of prohibition to the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Samantha Schosberg Feuer, Judge;
L.T. Case No. 502016CF007497A.

   Scott Berry of Scott Berry Law, P.A., West Palm Beach, for petitioner.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Richard
Valuntas, Assistant Attorney General, West Palm Beach, for respondent.

GERBER, C.J.

    The defendant petitions for a writ of prohibition, following the circuit
court’s order denying the defendant’s motion for discharge based on an
alleged violation of the speedy trial rule, Florida Rule of Criminal Procedure
3.191. The circuit court reasoned that, following this court’s disposition
of the state’s certiorari challenge to a pretrial evidentiary order, the circuit
court had ninety days to bring the defendant to trial under rules 3.191(i)(4)
and (m). The defendant argues that the court’s ruling to extend speedy
trial for ninety days following this court’s disposition was erroneous
because rule 3.191(m) did not apply. Case law from our supreme court,
this court, and our sister courts have rejected such an argument.
Therefore, we deny the defendant’s petition.

                            Procedural History

    On April 26, 2017, the defendant filed and served a demand for speedy
trial pursuant to rule 3.191(b) (“(1) Except as otherwise provided by this
rule, . . . every person charged with a crime by indictment or information
shall have the right to demand a trial within 60 days, by filing with the
court a separate pleading entitled ‘Demand for Speedy Trial,’ and serving
a copy on the prosecuting authority. . . . (4) If the defendant has not been
brought to trial within 50 days of the filing of the demand, the defendant
shall have the right to the appropriate remedy as set forth in subdivision
(p).”). Rule 3.191(b) would have required trial by June 15, 2017, not
including the recapture period specified in rule 3.191(p)(3). The court set
the defendant’s case for trial on June 5, 2017.

   On June 2, 2017, the circuit court entered an order sustaining the
defendant’s objection to the state’s notice of intent to offer evidence under
section 90.404(2), Florida Statutes (2016).

   On June 5, 2017, the day set for trial, the state filed its “Motion to Stay
Trial Proceedings, Extend Speedy Trial Limits and Continue the Case
Pending Final Disposition of the Petition for Writ of Certiorari.” In the
motion, the state notified the court that the state would be filing a
certiorari petition seeking this court’s review of the circuit court’s June 2
evidentiary order. The state argued it was entitled to an extension of the
speedy trial limits under rules 3.191(i)(4) and (m). Rule 3.191(i)(4)
provides:

      (i) When Time May Be Extended. The periods of time
      established by this rule may be extended, provided the period
      of time sought to be extended has not expired at the time the
      extension was procured. An extension may be procured by:

      ...

      (4) written or recorded order of the court for a period of
      reasonable and necessary delay resulting from proceedings
      including but not limited to an examination and hearing to
      determine the mental competency or physical ability of the
      defendant to stand trial, for hearings on pretrial motions, for
      appeals by the state, for DNA testing ordered on the
      defendant’s behalf upon defendant’s motion . . . and for trial
      of other pending criminal charges against the accused . . . .

(emphasis added). Further, rule 3.191(m) provides:

      (m) Effect of Mistrial; Appeal; Order of New Trial. A person
      who is to be tried again or whose trial has been delayed by an
      appeal by the state or the defendant shall be brought to trial
      within 90 days from the date of declaration of a mistrial by the
      trial court, the date of an order by the trial court granting a
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      new trial, the date of an order by the trial court granting a
      motion in arrest of judgment, or the date of receipt by the trial
      court of a mandate, order, or notice of whatever form from a
      reviewing court that makes possible a new trial for the
      defendant, whichever is last in time. If a defendant is not
      brought to trial within the prescribed time periods, the
      defendant shall be entitled to the appropriate remedy as set
      forth in subdivision (p).

(emphasis added).

    On June 5, 2017, still the day set for trial, the court entered the
following order:

         ORDERED AND ADJUDGED the State’s Motion is
      GRANTED pending final disposition of the Petition for Writ of
      Certiorari in the appellate court, and pursuant to Fla. R. Crim.
      P. 3.191(i)(4), Fla. R. Crim. P. 3.191, . . . this Court’s Order
      hereby tolls the speedy trial period pending a final ruling by
      the appellate court. The Court further orders that the
      Defendant be brought to trial within 90 days of the receipt of
      the mandate, order, or notice from the appellate court,
      pursuant to Fla. R. Crim. P. 3.191(m).

   On September 25, 2017, this court denied the state’s certiorari petition.

   On October 10, 2017, the defendant filed and served his “Notice of
Expiration of Speedy Trial Time” under rule 3.191(p)(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.”).

   On October 11, 2017, the circuit court entered an order striking the
defendant’s notice of expiration. The circuit court reasoned that it
correctly applied rule 3.191(m) in its June 5 order.

   On October 30, 2017, the defendant filed his motion for discharge. The
defendant’s motion argued that the circuit court erroneously applied rule
3.191(m). According to the defendant, the phrase “appeal by the state,” as
used in rule 3.191(m), does not include petitions for extraordinary writs.

    On October 30, 2017, the circuit court denied the defendant’s motion
for discharge without comment.

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   The defendant’s instant petition for writ of prohibition followed.

                               Our Review

    The defendant argues that the circuit court erroneously denied his
motion for discharge based on the circuit court’s alleged earlier
misapplication of rule 3.191(m). According to the defendant, the phrase
“appeal by the state,” as used in rule 3.191(m), does not include petitions
for extraordinary writs.

   The state’s response recognizes that rule 3.191(m)’s plain language
uses the phrase “appeal by the state.” However, the state argues that case
law from our supreme court, this court, and our sister courts, have held
that the phrase “appeal by the state” includes petitions for extraordinary
writs, and that the ninety-day speedy trial extension provided in rule
3.191(m) applies whenever a trial has been delayed by an appeal, including
petitions for extraordinary writs.

   We agree with the state’s argument. We will address the precedent from
our supreme court, this court, and our sister courts, in turn.

    In Nelson v. State, 414 So. 2d 505 (Fla. 1982), our supreme court held
that a trial court, after receiving a mandate from a district court, has the
authority to extend speedy trial time under rule 3.191 when the state seeks
certiorari review in the supreme court of the district court’s decision. Id.
at 506-07. In reaching its holding, our supreme court interpreted the
phrase “appeals by the State,” under rule 3.191, “to include all appellate
applications made by the state,” and found that “such an application may
constitute an ‘exceptional circumstance’” under rule 3.191, “depending on
the facts and legal issues involved in a particular case.” Id. at 508. In
State v. Rohm, 645 So. 2d 968 (Fla. 1994), our supreme court later held
that “the 90-day speedy trial period provided in Florida Rule of Criminal
Procedure 3.191(m) applies whenever a trial has been delayed by appeal.”
Id. at 968.

   Our supreme court’s precedent has guided this court’s precedent. In
Frazier v. State, 761 So. 2d 337 (Fla. 4th DCA 1999), after the trial court
extended the speedy trial time pending the outcome of the state’s certiorari
petition in the United States Supreme Court, the trial court denied the
defendant’s motion for discharge. Id. at 339. We affirmed. Id. at 340.
After acknowledging our supreme court’s holding in Nelson that the phrase
“appeals by the state” in rule 3.191 includes “all appellate applications
made by the state,” including certiorari petitions, we concluded that the
state was entitled under rule 3.191(m) to ninety days from the date of the
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trial court’s receipt of the Supreme Court’s mandate in which to bring the
defendant to trial. Id. at 339-40.

   Our supreme court’s precedent also has been followed by our sister
courts. In State v. Clarke, 834 So. 2d 398 (Fla. 2d DCA 2003), the state,
after receiving an adverse evidentiary decision on the morning of trial,
moved to extend speedy trial to seek certiorari review in the appellate
court. Id. at 399. The trial court denied the state’s extension request. Id.
When the defendant’s speedy trial time period expired, the trial court
granted the defendant’s motion for discharge, and the state appealed. Id.
Our sister court reversed, reasoning:

          When the State requests an extension of speedy trial for
      the purpose of pursuing an interlocutory appeal of a trial
      court’s ruling, “a trial court must grant this extension for the
      period necessary to complete the appellate proceedings,
      unless it makes a factual determination that the appeal is
      being taken for the purpose of delay, upon grounds which are
      frivolous and not fairly debatable.” State v. Barnett, 366 So.
      2d 411, 416 (Fla. 1978). Additionally, the Florida Supreme
      Court has ruled that the language “for appeals by the state”
      contained in Florida Rule of Criminal Procedure 3.191(i)(4)
      includes “all appellate applications made by the state.” Nelson
      v. State, 414 So. 2d 505[,] 508 (Fla. 1982). Thus, the mandate
      of Barnett applies to petitions seeking certiorari review as well
      as to interlocutory appeals.

834 So. 2d at 399-400 (footnote omitted); see also Wheeler v. Barron, 471
So. 2d 146, 147 (Fla. 1st DCA 1985) (“We hold that where, as here, the
speedy trial period is extended for a period covering the pendency of review
by the supreme court, the 90-day extension in [rule 3.191] becomes
effective upon disposition of the cause by that court. Therefore, the state
is permitted 90 days from the date of receipt by the trial court of the
supreme court’s mandate in which to bring petitioner to trial.”).

   The defendant’s reliance on a Third District case, State v. Barreiro, 460
So. 2d 945 (Fla. 3d DCA 1984), is misplaced. In Barreiro, our sister court
held that because rule 3.191 “refers specifically to an ‘appeal,’ it is not
applicable where the review is sought by way of a writ of certiorari.” Id. at
947. Our sister court reached this holding even though it acknowledged
our supreme court’s holding in Nelson that the phrase “appeals” as used
in rule 3.191 included all appellate applications. Id. Our sister court
apparently chose to disregard Nelson, stating “there is no authority or
logical requirement for bringing extraordinary reviews within the definition
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of [rule 3.191] appeals.” Id. While we appreciate the Barreiro court’s
reasoning, we must disagree with its choice to disregard Nelson. In any
event, our sister court may have had a change of mind on this issue. In
the more recently issued Johnson v. State, 984 So. 2d 609 (Fla. 3d DCA
2008), the Third District issued a PCA citing the Second District’s Clarke
decision, which we cite above.

                                Conclusion

   Based on the foregoing, we conclude that the circuit court correctly
denied the defendant’s motion for discharge. Following this court’s
disposition of the state’s certiorari challenge to the pretrial evidentiary
order, the circuit court correctly ruled that it had ninety days to bring the
defendant to trial under rules 3.191(i)(4) and (m). Therefore, we deny the
defendant’s petition for writ of prohibition.

   Petition denied.

GROSS and DAMOORGIAN, JJ., concur.

                            *        *         *

  Not final until disposition of timely filed motion for rehearing.




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