State v. Wilson

• Court: Florida District Court of Appeals
• Writing for the Court: PARKER; WHATLEY; ALTENBERND; ALTENBERND
• Citation: State v. Wilson, 690 So.2d 1361 (Fla. App. 1997)
• Decision Date: 02 April 1997
• Docket Number: No. 96-03613,96-03613
• Parties: 22 Fla. L. Weekly D853 STATE of Florida, Petitioner, v. Wilbur WILSON, Respondent.

Page 1361

690 So.2d 1361

22 Fla. L. Weekly D853

STATE of Florida, Petitioner, v. Wilbur WILSON, Respondent.

No. 96-03613.

District Court of Appeal of Florida Second District.

April 2, 1997.

Robert A. Butterworth, Attorney General, Tallahassee, and Tonja R. Vickers, Assistant Attorney General, Tampa, for Petitioner.

Julianne M. Holt, Public Defender, and Shea T. Moxon, Assistant Public Defender, Tampa, for Respondent.

PARKER, Acting Chief Judge.

The State of Florida filed a petition for writ of certiorari with this court, challenging the circuit court's reversal of the county court's denial of the defense's motion to discharge for violation of speedy trial. The circuit court entered the order while it served in an appellate capacity. We have jurisdiction. See Art. V, § 4(b)(3), Fla. Const.; Fla. R.App. P. 9.030(b)(2)(B). We grant the petition, concluding that the circuit court departed from the essential requirements of the law.

Wilbur Wilson was arrested on March 20, 1995, for driving while under the influence of alcohol, chemicals, or controlled substances (DUI). Under Florida Rule of Criminal Procedure 3.191(a), without any permitted extensions of speedy trial, the ninety-day speedy trial period would have run Saturday, June 17, 1995. Because the last day fell on a Saturday, the last day for trial, without permitted extensions, would be Monday, June 19, 1995. Fla. R.Crim. P. 3.040.

However, on May 10, 1995, Wilson appeared before the trial court with his attorney asking for thirty days for a new disposition date. The trial court advised that it was forced to set the matter for trial unless Wilson agreed to extend speedy trial by sixty days. Wilson's attorney, with Wilson's agreement, agreed to a sixty-day extension of speedy trial. The trial court's action, authorized by Florida Rule of Criminal Procedure 3.191(i)(1), created a new speedy trial final date of August 16, 1995, because a request for a continuance tolls the running of the speedy trial period for the duration of the continuance. See State v. Kubesh, 378 So.2d 121, 122 (Fla. 2d DCA 1980). At the end of the continuance the speedy trial period resumed.

On July 12, 1995, when the case was called for trial, the state filed a superseding information charging reckless driving. The state advised the trial court that the case involved the same circumstances giving rise to the DUI arrest and that the state would be calling the same witnesses previously furnished to the defense. Wilson's attorney, believing speedy trial had run on July 10, 1995, took the position that the superseding information was, in effect, a nolle prosequi of the DUI charge after speedy trial had run. Wilson filed two pleadings on July 12, 1995--Defendant's Notice of Expiration of Speedy Trial and Motion to Discharge for Violation of Speedy Trial. The trial court denied the motion to discharge for violation of speedy trial. After a nonjury trial, the trial court found Wilson guilty and sentenced him.

On appeal, the circuit court, acting in its appellate capacity, reversed the trial court, finding:

1. The period allowed for speedy trial, as extended, expired on July 10, 1995.

2. The State filed a superseding information charging the Appellant with reckless driving on July 12, 1995, after speedy trial had expired.

3. Based on Reed v. State, 649 So.2d 227 (Fla.1995) and State v. Agee, 622 So.2d 47 (Fla.1993), the superseding information should have been dismissed, because it was filed after the expiration of speedy trial. Therefore, the trial court erred in denying the Appellant's motion for discharge.

We are guided in our review of this petition for certiorari by the supreme court's direction in Combs v. State, 436 So.2d 93 (Fla.1983):

In granting writs of common-law certiorari, the district courts of appeal should not be as concerned with the mere existence of legal error as much as with the seriousness of the error. Since it is impossible to list all possible legal errors serious enough to constitute a departure from the essential requirements of law, the district courts must be allowed a large degree of discretion so that they may judge each case individually. The district courts should exercise this discretion only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.

Combs, 436 So.2d at 95-96. See also Haines City Community Dev. v. Heggs, 647 So.2d 855 (Fla. 2d DCA 1994), approved, 658 So.2d 523 (Fla.1995). Clearly, the circuit court failed to recognize that Wilson's agreement to extend the speedy trial period tolled the running of the period for sixty days resulting in a new speedy trial date of August 16, 1995. See Kubesh. The circuit court's failure to recognize Wilson's agreement to extend the period of speedy trial is a violation of a basic principle of the speedy trial rule which cannot be upheld because the state would be deprived of its day in court. The state filed a superseding information well within the extended speedy trial time created by Wilson's own actions. Any extension or waiver of speedy trial charged to Wilson applies to an amended information charging a crime based upon the same conduct or criminal episode as the original information. State v. Corlew, 382 So.2d 787 (Fla. 2d DCA 1980). The county court trial judge was correct in denying the defense motion to discharge, and the circuit court erred in failing to recognize this extended speedy trial period.

The cases upon which the circuit court relied are distinguishable. In Reed, the prosecution entered a nolle prosequi of the original arrest charged, allowed the speedy trial time to run, and then attempted to refile additional charges based upon the same criminal conduct. In Agee, the prosecution entered a nolle prosequi of the original charge, allowed the speedy trial time to run, and almost two years later, filed a new charge based upon the same circumstances. Neither of these cases apply to the facts in this case because the speedy trial time had not run when the state filed a superseding information against Wilson for reckless driving. In fact, in Agee, the court stated: "[W]e hold that 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 (emphasis added).

We grant the state's petition for writ of certiorari, quash the order of reversal that the circuit court entered, and direct the circuit court to affirm the county court's order denying Wilson's motion for discharge.

WHATLEY, J., concurs.

ALTENBERND, J., dissents with opinion.

ALTENBERND, Judge, Dissenting.

I agree that we have jurisdiction to review the circuit court's decision in this "second appeal" certiorari proceeding. Although the majority's discussion of speedy trial is correct, I cannot conclude the standard of review established in Combs v. State, 436 So.2d 93 (Fla.1983), and Haines City Community Development v. Heggs, 658 So.2d 523 (Fla.1995), authorizes this court to grant relief.

Mr. Wilson was initially charged with DUI and ultimately convicted of reckless driving. In his brief in circuit court, Mr. Wilson primarily argued that the county court agreed to extend the speedy trial period in his case for a total of sixty days, beginning on May 10, 1995. He did not argue that the speedy trial rule must always be interpreted in this fashion in all cases. The transcript of the short hearing in county court does not clearly reveal that court's intent. The circuit judge apparently reviewed the transcript and decided that Mr. Wilson correctly interpreted the county court's extension. The circuit court opinion does not contain any ruling that would have future precedential value; it merely concludes that "the period allowed for speedy trial, as extended, expired on July 10, 1995."

I cannot conclude that the circuit court departed from the essential requirements of the law in making this decision. The state did not make the speedy trial argument to the circuit court that the majority adopts in its opinion. The state did not even cite State v. Kubesh, 378 So.2d 121 (Fla. 2d DCA 1980). Instead, it incorrectly argued that Mr. Wilson's earlier unsuccessful petition for writ of prohibition was res judicata on the issue. Moreover, even if the circuit court erred, I do not believe it committed a serious legal error that meets the "miscarriage of justice" standard.

I will not repeat the excellent historical analysis of certiorari in Heggs. See 658 So.2d at 525-26. Recent precedent generally states that the rule announced in Heggs restricts a district court's standard of review to two issues: (1) whether a violation of procedural due process occurred in the lower tribunal, and (2) whether the lower tribunal committed a serious error involving clearly established principles of law, rising to the level of a departure from the essential requirements of the law and resulting in a miscarriage of justice. See State v. Bock, 659 So.2d 1196 (Fla. 3d DCA 1995). Arguably, this is really one issue because any violation of procedural due process should be regarded as a serious error resulting in a miscarriage of justice.

I may be overlooking some nuance, but I conclude that Heggs gives this court discretion to remedy serious harmful errors involving established legal principles that either (1) occur in county court and should have been corrected on appeal to the circuit court, or (2) occur on appeal from county court to circuit court. Although "miscarriage of justice" is a test that rings with the eloquence of Jefferson or Lincoln, my own mundane analysis in a second-appeal certiorari proceeding asks: "Is the petitioner being seriously...