McDuffie v. State, 1D12–1201.

• Decision Date: 29 November 2012
• Docket Number: No. 1D12–1201.,1D12–1201.
• Parties: Tavares McDUFFIE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

135 So.3d 317

Tavares McDUFFIE, Appellant,
v.
STATE of Florida, Appellee.

No. 1D12–1201.

District Court of Appeal of Florida,
First District.

Oct. 19, 2012.
Rehearing Denied Nov. 29, 2012.

[135 So.3d 319]

Tavares McDuffie, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant seeks review of the summary denial of his rule 3.850 motion for postconviction relief in which he claimed that his trial counsel was ineffective for not objecting to the filing of an amended information charging a new offense after expiration of the speedy trial period.¹ We issued a Toler² order, and in response, the State argued that the denial of this claim should be reversed and remanded for further proceedings. We previously reversed for further proceedings on this claim, see McDuffie v. State, 77 So.3d 848 (Fla. 1st DCA 2012), and we decline to do so again. Instead, for the reasons that follow, we reverse and remand with instructions that the trial court enter judgment against Appellant for the originally charged offense and resentence him accordingly.

In order to prevail on a claim of ineffective assistance of trial counsel, a defendant must establish that 1) counsel's performance was constitutionally deficient and 2) there is a reasonable probability that the outcome of the proceedings would have been different absent the deficient performance. See Spencer v. State, 842 So.2d 52, 61 (Fla.2003) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Appellant established both elements in this case.

Appellant was arrested on August 23, 2007, and charged with sale or delivery of cocaine, a second-degree felony. The 175–day speedy trial period expired on February 14, 2008, and Appellant filed a notice of expiration of speedy trial and a motion for speedy trial on February 22, 2008. The case was set for trial on March 3, 2008, within the “recapture period” provided by the speedy trial rule.

On February 28, 2008, the State filed an amended information charging Appellant with sale or delivery of cocaine within 1,000 feet of a school, a first-degree felony. Appellant's trial counsel did not object to the amended information, and on March 3, 2008, Appellant was taken to trial on the charge alleged in the amended information. The jury found Appellant guilty as charged, and the trial court sentenced him to 15 years in prison consecutive to a sentence in an unrelated case.

Appellant argues that his trial counsel performed deficiently by not objecting to the amended information filed after expiration of the speedy trial period. We agree. The law is clear that “although the state may amend an information after the speedy trial time expires, the state may not circumvent the intent and effect of the speedy trial rule by lying in wait until the speedy trial time expires and then amending an existing information in such a way that results in the levying of new charges (if those new charges arise from the same facts and circumstances giving rise to the original charge).” Pezzo v. State, 903 So.2d 960, 962 (Fla. 1st DCA 2005) (emphasis in original); see also

[135 So.3d 320]

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