Spurlock v. Cycmanick, 91-29

• Court: Court of Appeal of Florida (US)
• Citation: 584 So.2d 1015
• Docket Number: No. 91-29,91-29
• Parties: Anthony SPURLOCK, Petitioner, v. The Honorable Michael F. CYCMANICK, Circuit Court Judge, etc., Respondent. 584 So.2d 1015, 16 Fla. L. Week. D1649
• Decision Date: 20 June 1991

Page 1015

584 So.2d 1015 Anthony SPURLOCK, Petitioner,
v.
The Honorable Michael F. CYCMANICK, Circuit Court Judge,
etc., Respondent. No. 91-29.
584 So.2d 1015, 16 Fla. L. Week. D1649 District Court of Appeal of Florida,
Fifth District. June 20, 1991.
Rehearing Denied Sept. 12, 1991.

Joseph DuRocher, Public Defender, and William C. Hancock, II, Asst. Public Defender, Orlando for petitioner.

Robert A. Butterworth, Atty. Gen., Tallahassee and Anthony J. Golden, Asst. Atty. Gen., Daytona Beach, for respondent.

DIAMANTIS, Judge.

The petitioner, Anthony Spurlock, pursuant to rule 9.030(b)(3) of the Florida Rules of Appellate Procedure, has requested that this court issue a writ of prohibition to prevent the respondent, The Honorable Michael F. Cycmanick, from trying petitioner on a felony charge of aggravated battery. We issued a stay order. After consideration of the petition, we conclude that the petition is without merit. Accordingly, we deny the petition and vacate the order staying the trial court proceedings.

Petitioner claims that to try him on this felony would constitute double jeopardy and violate his right to a speedy trial under rule 3.191(a)(1) of the Florida Rules of Criminal Procedure. The record shows that petitioner was first charged with misdemeanor battery and that while that

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charge was pending an information charging petitioner with committing the felony offense of aggravated battery, based upon the same underlying criminal conduct, was filed within 180 days following petitioner's arrest. The misdemeanor battery charge was later dismissed because petitioner was not brought to trial within the required ninety day period. At that discharge hearing the petitioner, through his attorney, was informed of the pending felony information and case number. After dismissal of the misdemeanor charge and about the time of his arraignment on the felony charge petitioner left Florida and went to Michigan. Petitioner did not appear for his arraignment on the felony charge.

A speedy trial discharge on a lesser included misdemeanor charge does not bar a prosecution for a felony offense which is grounded upon the same conduct or criminal episode when the latter prosecution is filed within 180 days following arrest. State v. Johnson, 479 So.2d 279 (Fla. 2d DCA 1985). In Johnson, the court stated:

Rule 3.191(h)(1) forecloses any attempt to revitalize the misdemeanor charges once having been discharged because of failure to comply with the speedy trial requirement. Weed v. State, 411 So.2d 863 (Fla.1982). The felony charge, however, was not barred by Rule 3.191(h)(1) merely because Johnson had been discharged from the misdemeanors. State v. Sherman, 403 So.2d 1022 (Fla. 2d DCA 1981). Although the trial court's order is not explicit, we conclude that termination of the proceedings in Case Number CF 84-3401 was deemed to have brought Rule 3.191(h)(2) into play with the result that prosecution of the information in the instant matter was barred. Rule 3.191(h)(2) was not applicable; it becomes operative in the circumstances where the state seeks to avoid the effect of Rule 3.191(a)(1) through the artifice of terminating a pending criminal proceeding, subsequently reinstituting it based upon "new and different charges" grounded upon the same conduct or criminal episode and then achieving a second arrest. See Fyman v. State, 450 So.2d 1250 (Fla. 2d DCA 1984). Here, however, it cannot be said that the state was attempting to avoid the effect of Rule 3.191(a)(1). The second, or current, information filed on December 27, 1984 was well within the 180 day period following Johnson's arrest. The filing by the state of the "Notice of No Bill" had no effect on the later prosecution of Johnson under the current information. The trial court was in error in granting Johnson's motion to dismiss.

Id. at 280.

We conclude that a dismissal on speedy trial grounds of a necessarily included lesser offense does not bar a prosecution for the greater offense. A dismissal of a lesser offense on speedy trial grounds is analogous to the situation where a prosecution of a lesser offense, and not the greater offense, is time-barred by the statute of limitations. A statute of limitations defense is an absolute protection against prosecution or conviction for a crime which is time-barred. Tucker v. State, 459 So.2d 306, 309 (Fla.1984). The speedy trial time-barred defense operates to bar prosecution only for the crimes as specified in Florida Rule of Criminal Procedure 3.191(h)(1). This rule provides:

Rule 3.191 Speedy Trial

* * * * * *

(h)(1) Discharge from Crime; Effect. Discharge from a crime under this Rule shall operate to bar prosecution of the crime charged and of all other crimes upon which trial has not commenced nor conviction obtained nor adjudication withheld and which were or might have been charged as a result of the same conduct or criminal episode as a lesser degree or lesser included offense. (emphasis added).

This rule specifically bars prosecution only for the crime charged and any other crimes which might have been charged as a result of the same conduct or criminal episode as a lesser degree or lesser included offense. Neither expressly nor impliedly does this rule bar prosecution for greater degree crimes which might have been charged as a result of the same conduct or criminal episode.

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Rule 3.191(i)(3) does not enlarge the effect of rule 3.191(h)(1). Rule 3.191(i)(3) specifically provides that if a defendant is not brought to trial within the fifteen-day window period, he shall be discharged from the crime. Under rule 3.191(i)(3) the crime from which the defendant is discharged is the crime with which he was charged. Unlike rule 3.191(h)(1), rule 3.191(i)(3) does not refer to any additional crimes for which the defendant might have been charged as a result of the same conduct or criminal episode. We also note that the petitioner was never placed in jeopardy on the misdemeanor battery charge because the county court never empanelled and swore in a jury to try the charge.

We further hold that trying petitioner on the felony aggravated battery charge does not violate his right to a speedy trial under rule 3.191(a). Under rule 3.191(e), the initial burden is on the state at the discharge hearing. State v. Antonietti, 558 So.2d 192 (Fla. 4th DCA 1990). Rule 3.191(e) states:

No presumption of non-availability attaches but if the state objects to discharge and presents any evidence tending to show non-availability of the defendant, the accused must by competent proof establish availability during the term.

In this case no evidence was offered at the speedy trial hearing. However, the prosecuting attorney argued that petitioner waived the speedy trial time because he failed to appear at the felony arraignment and he had just been returned to Florida after being extradited from Michigan. Petitioner's attorney responded that once petitioner was discharged on the misdemeanor (on March 16, 1990), he moved to Michigan during the following month. Counsel agreed that petitioner did not appear for the felony arraignment (April 4, 1990), and that he did not return to Florida until he was arrested in Michigan, posted bond and returned to Florida sometime around November of 1990. We construe these statements by petitioner's counsel and his agreement with the statements made by the prosecutor as being either an admission or stipulation that petitioner was not available for trial. Freeman v. State, 450 So.2d 301 (Fla. 5th DCA 1984). See also Dick v. United States, 40 F.2d 609 (8th Cir.1930); Davidson v. State, 737 S.W.2d 942 (Tex.App.1987). These admissions or stipulations concerning petitioner's unavailability constituted evidence tending to show the nonavailability of petitioner. Consequently, under rule 3.191(e), the petitioner was required to establish, by competent evidence, his availability. Petitioner failed to offer any such competent evidence.

As for the matter of lack of personal jurisdiction over petitioner at the time of the April 4, 1990 felony arraignment, this argument was neither raised in the trial court nor in the petition before us. Also, petitioner failed to present any evidence on this point to the trial court. Further, unlike jurisdiction of the subject matter, personal jurisdiction can be conferred either by waiver or consent. See 15 Fla.Jur.2d, Criminal Law Sec. 562 (1979). Accord Campbell v. Dade County, 113 So.2d 708 (Fla. 3d DCA 1959). Because petitioner has not raised this argument and because personal jurisdiction can be conferred by waiver we should not consider this matter of lack of personal jurisdiction at the time of the April 4, 1990 arraignment. Appellate courts should not inject issues into a case that have not been raised by the parties unless the issues constitute fundamental error, which is not the situation in the instant case. In this case, the reason for this exercise of...