State v. Pereira

• Decision Date: 10 April 2015
• Docket Number: No. 5D13–3026.,5D13–3026.
• Citation: 160 So.3d 944
• Parties: STATE of Florida, Appellant, v. Hector M. PEREIRA, Appellee.
• Court: Florida District Court of Appeals

160 So.3d 944

STATE of Florida, Appellant

v.Hector M. PEREIRA, Appellee.

No. 5D13–3026.

District Court of Appeal of Florida, Fifth District.

April 10, 2015.

Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellant.

James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellee.

Opinion

LAWSON, J.

The State of Florida appeals an order dismissing a Second Amended Information and forever discharging Hector Pereira from prosecution on two charges of lewd and lascivious battery, or any other charge connected with the criminal episode for which he was arrested on February 16, 2013. The offenses were alleged to have occurred in February 2012, when Pereira, then age nineteen, was offered a temporary place to stay by the victim's mother, who explained that she offered Pereira shelter to help him “get[ ] his life back together.” Pereira is the same age as the victim's older brother, and is a cousin of the victim. The victim, then age twelve, reported that she woke up one night to find Pereira on top of her, engaging in penile/vaginal intercourse. She alleged that other sex acts followed on more than one occasion. The trial court dismissed the information and discharged Pereira based upon a belief that this result was required by Florida's procedural “speedy trial rule,” Florida Rule of Criminal Procedure 3. 191, as interpreted and applied in binding precedent from this court and the Florida Supreme Court. Finding that the cases cited to and relied upon by the trial court do not apply under these facts, we reverse.

On March 8, 2013, twenty days after Pereira's arrest, the State filed its original Information charging Pereira with the two crimes outlined above. The State then requested and secured one trial continuance without Pereira's agreement. At a pretrial conference on June 25, 2013, both parties announced that they were ready for trial, which was set for 8:30 a.m. on July 8, 2013—142 days after Pereira's arrest and comfortably within the general 175–day period set forth in rule 3.191(a) as the time within which a defendant should be brought to trial following arrest on felony charges (absent a waiver or other circumstances outlined in the speedy trial rule).

Instead, the State and Pereira reached an agreement pursuant to which the State would file an Amended Information charging a single count of child abuse, to which Pereira would enter a plea in exchange for an adjudication of guilt and a downward departure jail sentence. A plea hearing was scheduled for July 12, 2013—146 days after Pereira's arrest. At the start of the hearing, the State filed an Amended Information, as agreed, and outlined the agreement on the record. The prosecutor also explained that the victim's mother opposed the agreed disposition and wanted to address the court at the appropriate time. The judge conducted a thorough plea colloquy with Pereira, assuring that he had voluntarily agreed to plead as outlined, fully understood the rights that he would be giving up by entering the plea, and understood the consequences of the plea. As a factual basis, the prosecutor outlined two incidents of penile/vaginal penetration involving Pereira and the victim. The victim's mother then explained why she and her daughter were opposed to the plea, and stated that they would rather go through the ordeal of a trial than live with the light sentence agreed to by the parties. After further questioning the mother and the prosecutor about the case, the judge announced that he was unwilling to impose the agreed sentence and was “not taking the plea.”

Obviously aware that the speedy trial deadline was nearing, the prosecutor asked that the case be set for trial the next week, to which defense counsel objected, stating that she would be unavailable the next week. To accommodate defense counsel's schedule, the judge announced that the case would be set for a time certain, as “trial number one” on July 22, 2013—156 days after Pereira's arrest. However, it appears from the docket included in the record that the clerk did not reset the trial. The next activity of record was Pereira's August 12, 2013 Notice of Expiration of Speedy Trial, alleging that the period to bring him to trial had expired on August 10, 2013. On August 14, the trial court held a timely hearing on the notice and set the matter for trial on August 21, 2013, within the fifteen-day “recapture period” authorized by subsection (p)(3) of rule 3.191. On the same day as the hearing, August 14, 2013, the State filed a Second Amended Information to supersede the child abuse charge and reinstate the two charges of lewd and lascivious battery in place before the plea agreement. The parties agreed that the charges set forth in the Second Amended Information were identical to those charged in the original Information. On August 15, 2013, Pereira filed a motion to dismiss the Second Amended Information and for discharge, which the trial court granted on August 19, 2013. This appeal followed.

Generally, “the filing of an amended information purporting to be a complete restatement of the charges supersedes and vitiates an earlier information.” State v. Anderson, 537 So.2d 1373, 1374 (Fla.1989) ; see also State v. Belton, 468 So.2d 495, 497 (Fla. 5th DCA 1985) (finding that generally the “filing of a signed and sworn amended information has the effect on the original information of a nolle prosequi”). Thus, the trial court correctly concluded that the State's filing of the Amended Information at the beginning of the July 12 plea hearing acted as a nolle prosequi of the original Information. In State v. Agee, 622 So.2d 473 (Fla.1993), the Florida Supreme Court held that the speedy trial period continues to run after entry of a nolle prosequi, and that the State cannot refile abandoned charges by filing a new information after expiration of the speedy trial period. This holding was grounded firmly upon a concern expressly addressed in subsection (h)(2) of rule 3.191, which provides that the “intent and effect” of the speedy trial 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....” The Court in Agee explained that allowing the state to “unilaterally toll the running of the speedy trial period by entering a nolle pros would eviscerate” the rule because “a prosecutor with a weak case could simply enter a nolle pros while continuing to develop the case and then refile charges based on the same criminal episode months or even years later, thus effectively denying an accused the right to a speedy trial while the State strengthens its case.” Id. at 475.

Significantly, the concern expressed in Agee does not apply in a nolle-pros-by-amendment case, as demonstrated here. Because Pereira was facing charges continuously upon the State's filing of its original Information, Pereira was able to file his Notice of Expiration pursuant to the speedy trial rule, have a timely hearing upon notice pursuant to the rule, and have a trial date set within the recapture period provided by the rule. For this reason alone, we question whether the holding...