DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
STATE OF FLORIDA,
Appellant,
v.
SAMUEL EMMANUEL,
Appellee.
No. 4D21-348
[June 23, 2021]
Appeal from the County Court for the Seventeenth Judicial Circuit,
Broward County; Melinda Brown, Judge; L.T. Case Nos. 20-28AC10A and
20-41654MM10A.
Michael J. Satz, State Attorney, and Joanne Lewis, Assistant State
Attorney, Fort Lauderdale, for appellant.
Howard Finkelstein, Public Defender, and Sarah W. Sandler, Assistant
Public Defender, Fort Lauderdale, for appellee.
MAY, J.
The pandemic’s effect on the defendant’s due process rights creates the
issue in this appeal. The State appeals an order discharging the defendant
based on a violation of the speedy trial rule. The State argues that Florida
Supreme Court Administrative Order AOSC 20-13 (“AOSC 20-13”) and
subsequent orders suspended all time periods involving the speedy trial
rule and was not limited to court proceedings. We agree and reverse.
On March 26, 2020, the defendant was arrested for robbery and taken
into custody. On July 7, 2020, 103 days later, 1 the State filed an
information charging the defendant with one count of petit theft, a
misdemeanor. Approximately two months later, the defendant moved for
discharge. He argued that he should have been brought to trial within 90
days in accordance with Florida Rule of Criminal Procedure 3.191(a). He
1 The defendant’s argument that it was 104 days later is irrelevant because
either way it was past the 90 days provided by Florida Rule of Criminal Procedure
3.191.
also argued the State had to file charges against him within 90 days, even
though AOSC 20-13 temporarily suspended jury trials.
Following a hearing on the motion, the trial court found the State was
negligent in failing to timely file charges because the State filed charges in
other cases during this time. The trial court granted the motion to
discharge by “operation of law.”
The State now appeals.
A trial court’s ruling on a motion to discharge under the
speedy trial rule presents mixed questions of law and fact.
The trial court’s factual findings will be sustained if they are
supported by competent, substantial evidence. We review de
novo the trial court’s application of the law to the facts.
State v. Cheeks,
294 So. 3d 934, 939 (Fla. 4th DCA 2020) (internal
citations omitted) (quoting Davis v. State,
286 So. 3d 170, 173–74 (Fla.
2019)).
The State argues that AOSC 20-13 and subsequent orders suspended
all time periods involving the speedy trial rule and was not limited to court
proceedings. The defendant responds that AOSC 20-13 does not give the
State unlimited time to file charges because it would violate his right to
due process and the State had the ability to file charges during the
pandemic.
When the defendant does not make a demand for speedy trial, the
defendant shall still “be brought to trial within 90 days of arrest if the
crime charged is a misdemeanor.” Fla. R. Crim. P. 3.191(a). If trial does
not commence within the 90 days, “a pending motion for discharge shall
be granted by the court unless” there has been an extension, the delay is
attributable to the defendant, the defendant was unavailable, or the
demand was invalid. Fla. R. Crim. P. 3.191(j).
Shortly before the defendant’s arrest, our supreme court issued an
administrative order suspending the time limits “involving the speedy trial
procedure, in criminal and juvenile court proceedings” consistent with
Sullivan v. State,
913 So. 2d 762, 763 (Fla. 5th DCA 2005) (order granting
discharge reversed where administrative orders pertaining to hurricanes
tolling speedy trial time tolled the period in which defendant had to be
brought to trial after his notice for expiration of speedy trial was filed), and
State v. Hernandez,
617 So. 2d 1103, 1103 (Fla. 3d DCA 1993) (order
granting discharge for failure to bring defendant to trial within required
2
time period reversed where administrative order pertaining to hurricane
tolled rules relating to speedy trial procedure). Fla. Admin. Order No.
AOSC 20-13 (Fla. Mar. 13, 2020),
http://www.jud12.flcourts.org/Portals/0/AdminOrders/AOSC20-13.pdf?
ver=2020-03-13-155639-413.
Specifically, the administrative order at issue here stated that “[a]ll
grand jury proceedings, jury selection proceedings, and criminal and civil
jury trials are suspended,” as well as “[a]ll time periods involving the speedy
trial procedure.”
Id. (emphasis added). The order further allowed chief
judges of all the courts to “mitigate the effects of COVID-19 on the courts
and court participants.”
Id. (emphasis added). This order was extended
through August 2020. Fla. Admin. Order No. AOSC 20-23 (Fla. Aug. 12,
2020), http://www.floridasupremecourt.org/content/download/692045/
file/AOSC20-17.pdf.
Here, the trial court ignored AOSC 20-23’s language that suspended
speedy trial procedure in criminal proceedings. Rule 3.191 is actually
entitled “Speedy Trial” and is the rule the defendant relied on in seeking
discharge. Since this rule was effectively tolled by AOSC 20-23, the State
was permitted to file charges past the normal 90-day speedy trial deadline.
While Sullivan and Hernandez relate to the time required to bring a
defendant to trial, AOSC 20-23 explicitly states that it applies to all time
periods involving the speedy trial procedure. AOSC 20-23 states that it
was issued to mitigate the effect of COVID-19 on courts and court
participants. “All time periods involving the speedy trial procedure” were
suspended.
Id. The State did not violate the speedy trial rule by filing
charges a few days after the expiration of speedy trial time.
The Florida Eighth Circuit Court reached the same conclusion as the
trial court did here. Order Granting Motion for Discharge, State v.
Johnson, No. 01-2020-CF-000372-A (Fla. 8th Cir. Ct. Aug. 28, 2020),
appeal docketed, No. 1D20-2649 (Fla. 1st DCA 2020). There, the
defendant was not charged within 175 days of her arrest for a felony; she
moved for discharge.
Id. The state argued the motion should be stricken
because AOSC 20-13 tolled the state’s requirement to file charges within
the normal time period.
Id.
The court discharged the defendant, stating that the Florida Supreme
Court’s suspension of speedy trial did not include the state’s obligation to
file formal charges in accordance with rule 3.191(1).
Id. The court
explained that the purpose of the speedy trial suspension is to suspend
court proceedings, not due process, and noted that the state failed to
3
introduce evidence that it was unable to timely file.
Id. Johnson is
currently under review at the First District.
Id. 2
Because AOSC 20-13 suspended “[a]ll time periods involving the speedy
trial procedure”, we reverse the order of discharge and remand the case to
the trial court.
Reversed and remanded for reinstatement of the charge.
KUNTZ and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
2 Like Johnson, here, the State does not explain why it was unable to file
charges against the defendant within ninety (90) days. But any suggestion that
the state attorney’s office was able to file charges in other cases during the same
time frame is also unsupported by competent substantial evidence.
4
