State v. Clifton, 5D03-4110.

• Citation: 905 So.2d 172
• Decision Date: 18 March 2005
• Docket Number: No. 5D03-4110.,5D03-4110.
• Parties: STATE of Florida, Appellant, v. Joseph Warren CLIFTON, Appellee.
• Court: Florida District Court of Appeals

905 So.2d 172

STATE of Florida, Appellant, v. Joseph Warren CLIFTON, Appellee.

No. 5D03-4110.

District Court of Appeal of Florida, Fifth District.

March 18, 2005.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellant.

Adam Pollack of Faulkner & Pollack, P.A., Orlando, for Appellee.

ON MOTION FOR REHEARING OR CLARIFICATION

SAWAYA, C.J.

Appellant's Motion for Rehearing or Clarification is granted. The opinion dated February 11, 2005, is withdrawn to the extent that the last paragraph has been changed, and the opinion below is substituted therefore.

The State appeals the order dismissing the amended information charging Joseph Clifton with five counts of arson of a dwelling. The basis of the order of dismissal was the trial court's conclusion that the speedy trial time limit had expired and, therefore, Clifton was entitled to discharge. The specific issue we must resolve is whether the filing of an amended information after the speedy trial time limit has expired, but before the defendant files a notice of expiration pursuant to rule 3.191(h), Florida Rules of Criminal Procedure, entitles the defendant to automatic discharge and deprives the state of the recapture provisions of rule 3.191(p), Florida Rules of Criminal Procedure.

The facts underlying Clifton's alleged criminal conduct that made him a participant in the criminal justice system as a defendant answerable for his misconduct are not important to resolution of the issue before us. Because we are attempting to resolve a speedy trial issue, timing is everything and so we will reveal the pertinent timeline of the State's actions in prosecuting Clifton for his misdeeds.

Clifton was arrested on May 16, 2003, for willfully setting his residence on fire. The fire spread to four other structures and a vehicle. On August 20, 2003, the State filed an information charging Clifton with four counts of arson of a dwelling. On December 3, 2003, the State filed an amended information adding another count of arson. Here it is important to emphasize that the four counts alleged in the original information were realleged without change in the amended information. Additionally, at no time after his arrest did Clifton either waive his right to a speedy trial or make a demand for one.

On December 15, 2003, Clifton filed a motion to dismiss the amended information, arguing that pursuant to State v. Agee, 622 So.2d 473 (Fla.1993), the State could not file the amended information after the speedy trial time period had expired. On the same day, the trial court conducted a hearing on the motion. At the hearing, the prosecutor informed the court that he had inadvertently filed the amended information after the speedy trial time period had expired, but noted that the four counts contained in the original information had been continuously pending and that the amended information only added a fifth count, which he conceded should be dismissed. Taking the matter under advisement, the trial court adjourned the hearing. On the next day, prior to any ruling from the trial court, Clifton filed a notice of expiration of the speedy trial time period. On December 17, 2003, the trial court entered the order now under review which dismissed the amended information pursuant to Agee. The trial court specifically held that dismissal was proper because the speedy trial period had expired before the amended information was filed, and it implicitly held that the recapture provisions of the speedy trial rule did not apply.

Florida Rule of Criminal Procedure 3.191, commonly referred to as the speedy trial rule, requires the state to bring a defendant to trial within a time certain from the date the defendant is taken into custody: if the charge is a misdemeanor, within 90 days; and if the charge is a felony, within 175 days. The defendant has the right to demand a speedy trial, which will substantially shorten the time periods, especially if the charge is a felony. The speedy trial rule is not self-executing; rather, the accused must take affirmative action in order to avail himself or herself of the remedies available under the rule for the state's failure to comply with the requisite time limitations. See State v. Gibson, 783 So.2d 1155, 1158 (Fla. 5th DCA 2001) ("The provisions of rule 3.191 make it evident that the rule is not self executing: it requires the defendant to take certain steps to trigger application of rule 3.191(p)(3) which will either ensure a speedy trial or a discharge from the alleged crime.") (citations omitted). Hence, once the applicable time period has expired, the accused must file a notice of expiration pursuant to rule 3.191(h). Gibson. A hearing must be held within five days, and unless one of the exceptions contained in the rule applies, the trial court shall order that the defendant be brought to trial within ten days or be forever discharged from the crime. Fla. R.Crim. P. 3.191(p). The combined fifteen-day period is commonly referred to as the "window of recapture," and its intent is to give the state a final opportunity to bring the defendant to trial within fifteen days of the filing of the notice of expiration. Agee, 622 So.2d at 474. Failure to comply with the recapture provisions of the rule should prompt the accused to file a motion for discharge with the trial court. See Fla. R.Crim. P. 3.191(p)(3). Rule 3.191(o) prohibits the state from circumventing the remedial provisions of the speedy trial rule by entering a nolle prosequi and later refiling charges after the speedy trial period has expired:

(o) Nolle Prosequi; Effect. The intent and effect of this rule shall not be avoided by the state by entering a nolle prosequi to a crime charged and by prosecuting a new crime grounded on the same conduct or criminal episode or otherwise by prosecuting new and different charges based on the same conduct or criminal episode, whether or not the pending charge is suspended, continued, or is the subject of entry of a nolle prosequi.

Fla. R.Crim. P. 3.191(o).

It is Agee and its progeny that Clifton cites in support of his argument that discharge is the appropriate remedy for him in the instant case. In Agee, the court held that pursuant to rule 3.191(o), "when the State enters a nol pros, the speedy trial period continues to run and the State may not refile charges based on the same conduct after the period has expired." Agee, 622 So.2d at 475. The window of recapture is not available to the state in that circumstance, the court concluded. Subsequently, the court in Genden v. Fuller, 648 So.2d 1183 (Fla.1994), extended the holding in Agee to instances where the prosecution is terminated by a voluntary dismissal before an indictment or information is filed. For example, this may occur, as it did in Genden, when a defendant is arrested and the state announces that it will bring no action before formal charges are brought by the filing of an information or indictment. The court held that "the speedy trial time begins to run when an accused is first taken into custody and continues to run when the State voluntarily terminates prosecution before formal charges are filed and the State may not file charges based on the same conduct after the speedy trial period has expired." Genden, 648 So.2d at 1185. The court subsequently held in State v. Williams, 791 So.2d 1088, 1091 (Fla.2001), that "the speedy trial time begins to run when an accused is taken into custody and continues to run even if the State does not act until after the expiration of that speedy trial period. The State may not file charges based on the same conduct after the speedy trial period has expired." Hence, if the state does nothing and fails to announce "no action" after the defendant is arrested, thereby allowing the speedy trial time to expire, Agee applies and the state may not subsequently file charges.

Encapsulating the decisions of this trilogy of cases provides a rather clear pronouncement by the Florida Supreme Court that the state may not circumvent the purpose and intent of the speedy trial rule by: 1) entering a nolle prosequi of the charges and waiting to refile them until after the speedy trial period has expired; 2) voluntarily dismissing the charges before they are formally filed and filing formal charges after the time limit has expired; or 3) taking no action after the defendant is arrested and waiting until after the speedy trial period has expired to file formal charges. In these instances, the state has essentially abandoned the prosecution and the recapture provisions of the rule do not apply, with the result that the defendant must be discharged. But this pronouncement is not so clear when we confront, as we do in the instant case, the issue whether the state may amend an information after the speedy trial time period has expired. In order to determine whether the amended information will suffer the same fate, we must analyze the following: (1) the reason for the holdings in Agee, Genden, and Williams; and (2) the distinguishing features between an amended information and (a) a nolle prosequi, (b) an announcement of "no action," and (c) the state simply doing nothing as the speedy trial period expires.

The reason the state was prohibited from filing charges and proceeding with prosecution in the three instances addressed in Agee, Genden, and Williams is based on fairness to the accused and preservation of the integrity of the speedy trial rule. As we previously indicated, the speedy trial rule is not self-executing. Gibson. The defendant must initiate its application by filing a notice of expiration under rule 3.191(h), which requires the trial court to conduct a hearing within five days of the notice and a trial within ten days of the hearing. Fla. R.Crim. P. 3.191(p); Gibson. When the state enters a nolle prosequi or voluntarily dismisses the action by an announcement of "no action," the...