Clevenger v. State, 5D07-451.

• Decision Date: 02 November 2007
• Docket Number: No. 5D07-451.,5D07-451.
• Citation: 967 So.2d 1039
• Parties: Robert L. CLEVENGER, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

967 So.2d 1039

Robert L. CLEVENGER, Petitioner, v. STATE of Florida, Respondent.

No. 5D07-451.

District Court of Appeal of Florida, Fifth District.

November 2, 2007.

Howard Babb, Public Defender, Dale Marie Merrill, Assistant Public Defender, Inverness, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Respondent.

TORPY, J.

Petitioner seeks a writ of prohibition, based on speedy trial grounds, to prohibit the trial court from proceeding with his murder and aggravated battery trial. The pending charges arose from a physical altercation during which Petitioner allegedly battered several victims, including the decedent. Petitioner's theory is that the speedy trial period for any charges arising from the same fracas began to run, not when he was first arrested for crimes involving the decedent, but when he was first arrested for battery of any victim of the same fracas. This is true, he theorizes because all of the crimes occurred during the same "criminal episode." Concluding that the pending charges did not arise from the same episode for speedy trial purposes, we deny the petition.

On February 19, 2006, Petitioner was arrested for three misdemeanor counts of battery on Amy Cook, Christina Owens, and Joshua Barney. These charges arose from a physical altercation that began between Petitioner and his wife but also involved Cook, Owens, Barney and the decedent, Tia Florin, all of whom had apparently attempted to intervene. Florin, who was pregnant at the time, collapsed during the melee and could not be revived. She died later that night. Petitioner was initially charged with multiple counts of misdemeanor battery. He pled no contest and was sentenced to time served for the offenses involving Cook, Owens, and Barney.

Many months after the disposition of the misdemeanor charges, the State filed the information in this case, charging Petitioner with third-degree murder and aggravated battery on Florin. Petitioner was arrested on the new charges the following day. He filed a motion to discharge the felony charges pursuant to Florida Rule of Criminal Procedure 3.191(a). The trial court treated his motion as a notice of expiration of time for speedy trial. The trial court orally denied Petitioner's motion, relying on this Court's decision in State v. Brandt, 460 So.2d 444 (Fla. 5th DCA 1984). It then set the case for trial, which we stayed pending review of this petition.

Petitioner claims that all of the criminal charges arose out of a single criminal episode. Accordingly, he contends that, when he was arrested and taken into custody on the misdemeanor charges, the speedy trial period began to run for all charges and all victims involved in the same incident. Like the trial court, we conclude that our decision in Brandt is controlling here. There, Brandt allegedly committed two sexual batteries on two different victims during the same encounter. Although Brandt was initially arrested for one of the sexual batteries, he was not charged with the second battery until much later when an amended information was filed. The lower court discharged Brandt on the second sexual battery charge, finding that the two batteries arose from the same criminal episode. We reversed. In addressing Brandt's argument that the speedy trial period commenced to run on both charges at the time he was initially arrested, we said:

Here, appellee was involved in two batteries on two persons, it is alleged. Until he is taken into custody on a charge he is not entitled to speedy trial rights. He was not taken into custody for the second charge until, at the earliest January 11, 1984, when the information was filed, as far as the record here discloses. The motion for discharge affirmatively states that appellant [sic] was arrested for Count One on March 4, 1984. It does not say he was taken into custody for Count Two on that day, or any particular day.

The only evidence that the appellee was taken into custody as to Count Two is the information charging him with Count Two. The motion for discharge does not support the finding made and the information refutes the finding. The fact that both batteries occurred at the same location in the same time period does not equate to the same crime. There were two victims thus two separate crimes. Appellee should not have been discharged. The order of discharge is reversed and this cause remanded for trial on both counts.

Id. at 445-46 (emphasis added).

Petitioner has made no attempt to distinguish Brandt, so our analysis would ordinarily end with our citation to this precedent. However, Petitioner suggests that the holding in Brandt is no longer viable in light of more recent decisions of this and other courts. We disagree.

Generally, the speedy trial rule provides a right to an expeditious trial when a defendant has been "charged with a crime." Fla. R.Crim. P. 3.191(a). The time period begins to run when the defendant is arrested for the crime or issued a notice to appear. Fla. R.Crim. P. 3.191(a), (d). Under certain limited circumstances, however, the right to a speedy trial can commence to run on uncharged crimes if the uncharged crimes are part of the same "criminal episode" as the charged crimes. State v. Hanna, 858 So.2d 1248, 1250 (Fla. 5th DCA 2003). Crimes are deemed to be part of the same criminal episode so as to trigger the running of the speedy trial period when they are based on substantially the same conduct, even though the conduct may give rise to different consequences. Id. Accord State v. Lynch, 445 So.2d 687, 689 (Fla. 2d DCA 1984) (for speedy trial purposes, for charged and uncharged crimes to be same "criminal episode, ... conduct resulting in the separate crimes must be `not merely related,' but `the same conduct,'" even though it gives rise to different consequences (quoting Walker v. State, 390 So.2d 411, 412 (Fla. 4th DCA 1980))); see also Shearin v. State, 755 So.2d 800 (Fla. 2d DCA 2000) (citing Lynch as viable authority). As we explained in Hanna, crimes can constitute separate criminal episodes for speedy trial purposes even though they happen at the same time. Admittedly, there is some disagreement and confusion in this area, and the decisional law is not always easily reconciled. Here, however, the charged and uncharged crimes are clearly not part of the same criminal episode because they involved distinct acts against different victims.

We do not think our decision here is in tension with Reed v. State, 649 So.2d 227 (Fla.1995), a case upon which Petitioner heavily relies. In Reed, the defendant was arrested for robbery and traffic offenses arising from a convenience store holdup and subsequent flight from the scene of the crime. He was first charged with kidnapping by information filed long after the 175th day following his arrest on the robbery charge. In addition to directing a discharge on the robbery charge, because the state failed to bring him to trial within 175 days following his arrest, the court directed that Reed be discharged on the kidnapping charge because it had arisen from the same criminal episode as the robbery. Although the facts of the robbery and kidnapping are not discussed in the opinion, nor in the opinion of the district court, we must assume that both charges involved substantially the same conduct and the same victim. Here, by contrast, the crimes allegedly committed against Florin did not involve the same conduct as the batteries involving the other victims. Thus, the charges did not arise from the same criminal episode. Reed is therefore distinguishable.

We also reject Petitioner's contention that a different result is compelled by our decision in State v. Clifton, 905 So.2d 172 (Fla. 5th DCA 2005). There, Clifton set fire to his own house. The fire spread to four other structures and a vehicle. Clifton was arrested for setting the fire and the state filed a timely information charging him with arson as to all of the structures save for one. After the speedy trial period expired, the state amended the information recharging Clifton with the same crimes charged in the original information and adding a new count related to the fifth structure. Clifton moved to dismiss the entire information, arguing that the state was precluded from filing the information after the speedy trial period had expired. The state conceded that the new count should be dismissed, but argued that the restated charges should not be dismissed. The trial court granted the defense motion as to all counts. We affirmed the dismissal of the count that was added after the speedy trial period had expired because that count involved an offense that was part of the same criminal act as the originally charged offenses. We, however, reversed the dismissal as to the originally charged affidavits.

Petitioner argues that Clifton implicitly overrules Brandt because Clifton stands for the proposition that crimes against different victims may be part of the same criminal episode for speedy trial purposes. Petitioner draws this conclusion because, in Clifton, we affirmed the dismissal of the one charge, which Petitioner assumes involved a different victim. Even if Petitioner's assumption is correct, we do not believe a different conclusion is mandated by Clifton for several reasons. First, the propriety of the dismissal of the one charge had been conceded by the State. Our discussion of that issue, therefore, was mere dictum. Second, the panel in Clifton did not expressly (and could not) overturn the prior panel decision in Brandt. Finally, Clifton is distinguishable from Brandt and this case in that Clifton had committed one act — the setting of a fire — which gave rise to multiple charges. Here, by contrast, the crime against Florin was a distinct act.¹ Therefore, Clifton does not compel the result urged by Petitioner.

Because our conclusion that the charges were not part of the same...