State v. Conroy

• Decision Date: 31 July 2013
• Docket Number: No. 3D11–1197.,3D11–1197.
• Parties: The STATE of Florida, Appellant, v. Mark CONROY, Appellee.
• Court: Florida District Court of Appeals

118 So.3d 305

The STATE of Florida, Appellant,

v.Mark CONROY, Appellee.

No. 3D11–1197.

District Court of Appeal of Florida,

Third District.

July 31, 2013.

Pamela Jo Bondi, Attorney General, Tallahassee, and Jay E. Silver, Assistant Attorney General, Miami, for appellant.

Jeffrey D. Swartz, Riverview, for appellee.

Before CORTIÑAS, EMAS and LOGUE, JJ.

EMAS, J.

The State of Florida appeals from the entry of an order dismissing four of the five counts in the State's third amended information. The State contends that because the amended information was filed before defendant filed his notice of expiration, the trial court erred in dismissing the amended charges. We affirm in part and reverse in part.

Appellee Mark Conroy (“Conroy”) was arrested on February 24, 2008. On March 17, 2008, the State filed an information charging Conroy with Shooting or Throwing a Deadly Missile (Count One) and Criminal Mischief (Count Two).

In May 2008, the State filed an amended information, charging Conroy with Criminal Mischief (Count One) and Attempted First Degree Murder (Count Two). Count Two alleged that the victims of the Attempted First Degree Murder were “CLAUDIO PRADO and/or BELKIS VASQUEZ and/or LAZARO PRADO and/or ANGEL PRADO.”

In May 2009, following several continuances, the State filed a second amended Information, charging Conroy with Attempted First Degree Murder (Count One) (again alleging multiple victims in the same conjunctive/disjunctive manner); Shooting or Throwing a Deadly Missile (Count Two); and Aggravated Assault with a Firearm (Count Three). Count Three alleged that the victims of the Aggravated Assault were “CLAUDIO PRADO and/or BELKIS VASQUEZ and/or LAZARO PRADO and/or ANGEL PRADO.” Conroy was arraigned and the matter was set for trial on August 31, 2009.

After several additional continuances in 2009 and 2010, the matter was reset for trial on February 7, 2011. At that time the State requested a continuance of the trial date. Conroy did not object to the State's request but indicated he would file a demand for speedy trial. The court granted a State continuance and the matter was set for trial on April 25, 2011.

On February 22, 2011, Conroy filed a Demand for Speedy Trial pursuant to Florida Rule of Criminal Procedure 3.191(b). On February 23, the court held a hearing on the speedy demand and reset the trial date from April 25 to March 8. However, at a hearing on March 2, the State advised it would not be ready for trial March 8, but recognized that the original trial date of April 25 was no longer appropriate because a speedy demand had been filed and the April 25 trial date would fall outside the speedy trial period.¹

Defense counsel indicated that he would not file a notice of expiration until April 25, 2011. The court reset the trial to the original date of April 25, 2011.

On April 25, 2011, the day of the scheduled trial, the State filed its third amended information, which is the subject of this appeal. This third amended information contained the original (and unamended) charge of Shooting or Throwing a Deadly Missile but significantly altered the Attempted First Degree Murder and Aggravated Assault counts in the following manner:

Instead of a single count of Attempted First Degree Murder alleging four possible victims conjunctively and disjunctively (i.e., “CLAUDIO PRADO and/or BELKIS VASQUEZ and/or LAZARO PRADO and/or ANGEL PRADO”), the third amended information alleged two separate counts of Attempted First Degree Murder, naming Claudio Prado as the victim in Count One and Belkis Vazquez as the victim in Count Two;

In addition, instead of a single count of Aggravated Assault with a Firearm alleging four possible victims conjunctively and disjunctively (i.e., “CLAUDIO PRADO and/or BELKIS VASQUEZ and/or LAZARO PRADO and/or ANGEL PRADO”), the third amended information alleged two separate counts of Aggravated Assault with a Firearm, naming Claudio Prado as the victim in Count One and Belkis Vazquez in Count Two.

Thus, instead of three counts (Shooting or Throwing a Deadly Missile, Attempted First Degree Murder, and Aggravated Assault), this information now contained five counts (Shooting or Throwing a Deadly Missile, two counts of Attempted First Degree Murder, and two counts of Aggravated Assault).

On the same day that the State filed its third amended information, Conroy filed his notice of expiration of the speedy trial period (which he could have filed eleven days earlier, but for defense counsel's agreement not to file it until April 25).

Conroy moved to dismiss all five counts of the third amended information. Following argument from both sides, the court entered an order dismissing Counts One and Two (Attempted First Degree Murders) and Four and Five (Aggravated Assaults), but denied the motion as to Count Three (Shooting or Throwing a Deadly Missile).² This appeal by the State followed.

While the granting of a motion to dismiss based on speedy trial grounds is generally reviewed de novo ³, see State v. Nelson, 26 So.3d 570, 573–74 (Fla.2010), the instant case presents multiple standards of review. Because the trial court granted the motion, at least in part, on a determination that the filing of the third amended complaint, after expiration of the speedy trial period, violated the intent and effect of the speedy trial rule ⁴ and resulted in prejudice to the defendant, the trial court's action requires an exercise of judgment and discretion, which we review under an abuse of discretion standard. See e.g., State v. Gillis, 876 So.2d 703 (Fla. 3d DCA 2004) (applying abuse of discretion standard to review dismissal of informationbased upon violation of discovery rules); Hernandez v. City of Miami, 35 So.3d 942 (Fla. 3d DCA 2010) (applying abuse of discretion standard to review court's dismissal of civil action as a sanction). To the extent our review involves the trial court's interpretation or construction of the speedy trial rule itself, the standard of review is de novo.⁵See Saia Motor Freight Line, Inc. v. Reid, 930 So.2d 598 (Fla.2006).

Florida Rule of Criminal Procedure 3.191(b) (2011) provides:

(b) Speedy Trial upon Demand. Except as otherwise provided by this rule, and subject to the limitations imposed under subdivisions (e) and (g), 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.

(1) No later than 5 days from the filing of a demand for speedy trial, the court shall hold a calendar call, with notice to all parties, for the express purposes of announcing in open court receipt of the demand and of setting the case for trial.

(2) At the calendar call the court shall set the case for trial to commence at a date no less than 5 days nor more than 45 days from the date of the calendar call.

(3) The failure of the court to hold a calendar call on a demand that has been properly filed and served shall not interrupt the running of any time periods under this subdivision.

(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).

Subdivision (p) provides the remedy and so-called “recapture period” once the applicable speedy trial period has expired:

(p) Remedy for Failure to Try Defendant within the Specified Time.

(1) No remedy shall be granted to any defendant under this rule until the court has made the required inquiry under subdivision (j).⁶

(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.

(3) No later than 5 days from the date of the filing of a notice of expiration of speedy trial time, the court shall hold a hearing on the notice and, unless the court finds that one of the reasons set forth in subdivision (j) exists, shall order that the defendant be brought to trial within 10 days. A defendant not brought to trial within the 10–day period through no fault of the defendant, on motion of the defendant or the court, shall be forever discharged from the crime.

Here, Conroy filed his demand for speedy trial on February 22, 2011. The fifty-day period within which to bring Conroyto trial expired on April 13, 2011. However, due to scheduling difficulties, the court set the trial for April 25, 2011, with Conroy's agreement that the defense would not file a notice of expiration until that date. But the defendant did not agree to extend the speedy trial period, nor did the State request, or the trial court determine, that such an extension was warranted under the circumstances. SeeRule 3.191( l ) (setting forth exceptional circumstances permitting an extension of the speedy trial period).

Therefore, it is clear that by April 25 the speedy trial period had expired although no notice of expiration had yet been filed. The State contends that, because no notice of expiration was filed by the time the State filed its third amended information, the trial court erred in dismissing the four counts of the third amended information.

The trial court determined that dismissal was warranted because:

—The third amended information was filed after the expiration of the speedy trial period;

—The third amended information added two new substantive counts, exposing Conroy to an additional mandatory minimum sentence of forty years on the additional counts ⁷, and an additional maximum sentence of life (attempted first degree murder) and five years (aggravated assault).

—The State's filing of the third amended complaint to add these two new counts, more than three years after the initial information, after expiration of the speedy trial period, and on the day of trial, violated Rule 3.191( o ).

Rule 3.191( o ) pro...