Weed v. State
| Decision Date | 11 March 1982 |
| Docket Number | No. 57516,57516 |
| Citation | 411 So.2d 863 |
| Parties | David WEED and Brenda Weed, Petitioners, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Leo A. Thomas of Levin, Warfield, Middlebrooks, Mabie & Magie, Pensacola, for petitioners.
Jim Smith, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for respondent.
This is a petition for writ of certiorari seeking review of a decision by the District Court of Appeal, First District, reported as State v. Weed, 373 So.2d 42 (Fla. 1st DCA 1979), which conflicts with Robinson v. Lasher, 368 So.2d 83 (Fla. 4th DCA 1979); State v. Thaddies, 364 So.2d 819 (Fla. 4th DCA 1978); State ex rel. Smith v. Nesbitt, 355 So.2d 202 (Fla.3d DCA 1978); State ex rel. Williams v. Cowart, 281 So.2d 527 (Fla.3d DCA 1973), and Wilcox v. State, 248 So.2d 692 (Fla. 4th DCA 1971). We have jurisdiction, Article V, Section 3(b) (3), Florida Constitution.
Once again, we are confronted with an application of Rule 3.191, Rules of Criminal Procedure, the speedy trial rule. Petitioners were arrested on August 18, 1977, and charged by information on September 15, 1977, with separate counts of possession of marijuana and possession of hashish contrary to section 893.13(1)(e), Florida Statutes (1977). Trial on December 28-29, 1977 resulted in a mistrial when the jury could not reach a unanimous verdict. Subsequently, the state moved to amend the marijuana count in order to allege that petitioners possessed more than five grams, the amount necessary to constitute a felony. On February 10, 1978, the trial court allowed the amendment over petitioner's objections. On February 24, 1978, the court granted petitioners' motion to discharge the newly-amended marijuana count under the speedy trial rule, ruling that the amendment of the information to charge possession of more than five grams was a new and different charge based on the same conduct or criminal episode and was therefore subject to the 180 day time period in Rule 3.191(a)(1). Subsequently, the state sought to amend the count to reinstate the misdemeanor. The court rejected the amendment on the ground that the original charge had been abandoned by the earlier amendment and further found that defendants had been available for trial and no exceptional circumstances existed.
Upon appeal, the district court reversed and remanded, holding that the state was entitled under the provisions of Rule 3.191(g), Florida Rules of Criminal Procedure, to 90 days from the date of mistrial, notwithstanding the fact that the charge was amended from a misdemeanor to a felony. The court reasoned that the speedy trial rule prohibits neither amendments nor enhanced charges and that once charges are amended, the amended charges are subject to the same speedy trial time periods as apply to the original charges. More specifically, it was noted that subsection (g) does not exclude amended charges from the 90 day period allowed following mistrial.
Rule 3.191(g) reads as follows:
(g) Effect of Mistrial; Appeal; Order of New Trial. A person who is to be tried again or whose trial has been delayed by an appeal by the State or the defendant shall be brought to trial within 90 days from the date of declaration of a mistrial by the trial court, the date of an order by the trial court granting a new trial, the date of an order by the trial court granting a motion in arrest of judgment, or the date of receipt by the trial court of a mandate, order, or notice of whatever form from an appellate or other reviewing court which makes possible a new trial for the defendant, whichever is last in time.
In his dissent, Judge Robert Smith construed the words "to be tried again" in Rule 3.191(g) as limited to retrial of the same charges on which the accused was previously tried, or to lesser and included charges, or charges of attempt to commit those offenses, but not to increased amended charges.
Thus, the main issue confronting this Court is whether the state should be given the benefit of the 90 days allowed by Rule 3.191(g) on the amended charge. In addition, we find it necessary to answer a second question not resolved by the district court since that court's resolution of the first question made consideration of it unnecessary. That question is whether the trial court's denial of the state's motion to reinstate the charge as a misdemeanor was correct.
We hold that Rule 3.191(g) is not applicable to an information which has been amended to increase a charge from a misdemeanor to a felony after a mistrial on the misdemeanor. To reach this conclusion, we must determine the precise meaning of the language "to be tried again". Obviously, this rule contemplated that the normal retrial would involve the same charge that was the subject of the proceeding which resulted in the mistrial, thereby necessitating less time for trial preparation and a shorter than normal speedy trial time period. Inherent in such a time limit reduction is a concomitant restriction on the nature of changes which can be made in the essential elements of the charge. In this regard, it is difficult to imagine a greater change than an increase in a charge from a misdemeanor to a felony. A person is not being "tried again" for a misdemeanor when he is charged with a felony.
An analysis of similar cases is useful in assisting us to reach this conclusion. In Thaddies, the court held that when a charge is dropped and another is filed based on the same incident, the date...
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Bulgin v. State
...here. This Court has consistently held that the 175-day speedy trial period begins upon a defendant's initial arrest. See Weed v. State, 411 So.2d 863, 865 (Fla.1982) ("[T]he date of the original arrest is the focal point for speedy trial considerations, irrespective of changes made in char......
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Pelky v. State, No. SC03-2217 (FL 5/19/2005)
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