State v. Borko , 2015 Fla. App. LEXIS 12400 ( 2015 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
STATE OF FLORIDA, )
)
Appellant, )
)
v. ) Case No. 2D13-5823
)
WILLIAM M. BORKO, )
)
Appellee. )
)
Opinion filed August 19, 2015.
Appeal from the County Court for Lee
County; James R. Adams, Judge.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Marilyn Muir Beccue,
Assistant Attorney General, Tampa, for
Appellant.
Howard L. Dimmig, II, Public Defender,
and Lisa Lott, Assistant Public Defender,
Bartow, for Appellee.
SLEET, Judge.
The State challenges the final order of the county court which discharged
a misdemeanor information charging William M. Borko with petit theft. The basis for the
discharge was a violation of the speedy trial rule set forth in Florida Rule of Criminal
Procedure 3.191. In discharging the information, the county court also certified the
following question of great public importance to this court: "When a felony case is
reduced to a misdemeanor and transferred to county court, does the 175-day speedy
[trial] rule time apply?" We accept discretionary jurisdiction pursuant to Florida Rule of
Appellate Procedure 9.030(b)(4)(A) and affirm the order of the county court.
Additionally, we reword the certified question as follows:
WHEN THE STATE NOLLE PROSSES A FELONY CASE
IN CIRCUIT COURT AND FILES IT AS A MISDEMEANOR
IN COUNTY COURT, DOES THE 175-DAY SPEEDY TRIAL
RULE APPLY?
We answer the question in the negative.
In the instant case, Borko was arrested on June 16, 2013, for the theft of a
bicycle. On July 12, 2013, the State filed a felony information charging Borko with third-
degree grand theft based on that bicycle theft. A little more than two months later, on
September 20, 2013, the State filed a misdemeanor information in county court
charging Borko with misdemeanor petit theft based on the same bicycle theft. Six days
later, the State nolle prossed the felony charge. On September 30, 2013, Borko filed a
Notice of Expiration of Speedy Trial and Motion for Discharge as to the misdemeanor
information. Following a hearing, the trial court entered its order discharging the
misdemeanor information based on the speedy trial violation.
Rule 3.191(a) states, in part, as follows:
Except as otherwise provided by this rule, . . . every person
charged with a crime shall be brought to trial within [ninety]
days of arrest if the crime charged is a misdemeanor, or
within 175 days of arrest if the crime charged is a felony. If
trial is not commenced within these time periods, the
defendant shall be entitled to the appropriate remedy as set
forth in subdivision (p). The time periods established by this
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subdivision shall commence when the person is taken into
custody as defined under subdivision (d). . . .
Subsection (p) of the rule, entitled "Remedy for Failure to Try Defendant within the
Specified Time," states:
(1) No remedy shall be granted to any defendant under this
rule until the court has made the required inquiry under
subdivision (j).
(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 [five] 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 [recapture]
period through no fault of the defendant, on motion of the
defendant or the court, shall be forever discharged from the
crime.
Fla. R. Crim. P. 3.191(p) (emphasis added).
This rule has been interpreted to mean that the State's charging document
has to be filed within the speedy trial time period in order for the State to be entitled to
the ten-day recapture period in which to bring the defendant to trial. See State v.
Jimenez, 44 So. 3d 1230, 1233 (Fla. 5th DCA 2010) ("As long as the State files its
[felony] charges within the speedy trial period, its failure to bring the defendant to trial
within 175 days does not entitle the defendant to an immediate discharge." (citing State
v. Nelson, 26 So. 3d 570, 574 (Fla. 2010))).
Here, the State filed its felony charge in circuit court within the 175-day
felony period designated by the rule. Although it eventually nolle prossed that felony
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charge, it did file the misdemeanor information in county court prior to doing so.
Accordingly, the question before us is whether that misdemeanor information was
untimely filed because it was filed outside of the ninety-day period the rule allows for
misdemeanors or whether the misdemeanor information can be deemed timely because
it relates back to the felony information that was filed within the felony time period.
Initially, we note that the State's reliance on this court's opinion in
Woodbury v. State, 110 So. 3d 17 (Fla. 2d DCA 2013), is misplaced as that case is
factually and procedurally distinguishable from the instant case. In Woodbury, felony
DUI charges were dismissed on the defendant's motion based on the fact that the
defendant did not have the requisite prior DUIs to enhance the charge to a felony. The
circuit court, however, left the case on its docket. The State filed a misdemeanor
information in county court, but Woodbury filed a motion to discharge in the circuit court.
The circuit court denied the motion and conducted a jury trial on the misdemeanor, after
which Woodbury was convicted of the misdemeanor. On appeal, Woodbury argued that
after the circuit court dismissed the felony charge, it lacked subject matter jurisdiction to
hear the misdemeanor charge and that the misdemeanor charge was a nullity because
the misdemeanor information was filed outside the ninety-day speedy trial period. This
court concluded that although the circuit court dismissed the felony charge, it retained
subject matter jurisdiction over the lesser included misdemeanor charge and that
therefore the circuit court did not err in denying Woodbury's motion to discharge. This
court further stated that "because we have concluded here that the circuit court
maintained jurisdiction over the lesser-included misdemeanor DUI, we also conclude
that the felony speedy trial time period governs." Id. at 19. However, Woodbury does
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not address whether the 175-day felony speedy trial time still applies after the felony is
nolle prossed and the case is filed in county court.
In State v. Agee, 622 So. 2d 473 (Fla. 1993), the supreme court
addressed whether the 175-day period continues to run once a felony charge is nolle
prossed and the State tries to refile a different felony charge more than 175 days after
the defendant was originally arrested. The court held that "when the State enters a
nol[le] 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." Id. at 475. But
again, Agee is factually and procedurally distinguishable from the instant case and does
not address which period—the ninety-day misdemeanor period or the 175-day felony
period—is the applicable period when a felony is nolle prossed in circuit court and a
misdemeanor is filed in county court based on the same conduct.
We find State v. Mercer, 112 So. 3d 523 (Fla. 2d DCA 2013), to be more
instructive on this issue. In Mercer, the State originally filed a misdemeanor information
in county court. At the arraignment, the State dismissed the misdemeanor and
announced its intention to file a felony information based on the same conduct. On the
last day of the ninety-day misdemeanor speedy trial period, the State filed its felony
information. But Mercer sought to discharge that information, arguing that the State had
failed to comply with the speedy trial rule. Mercer's argument was two-fold. First, she
maintained that because the State had originally filed the charge as a misdemeanor, the
ninety-day speedy trial period for misdemeanors continued to apply after the State
dismissed the charges. Second, she argued that the State had not properly complied
with the ninety-day period because, although it had filed its felony information within that
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period, it had failed to rearrest her or give her other notice of the felony charge. The
circuit court agreed with Mercer and discharged the felony information.
This court reversed, concluding that the State had the 175-day period in
which to file the felony information. In doing so, this court relied on Nesworthy v. State,
648 So. 2d 259, 260 (Fla. 5th DCA 1994), in which the Fifth District, addressing a
situation similar to the one in Mercer, stated: "It appears to us most logical, and most
consistent with the scheme set forth in [r]ule 3.191, that notwithstanding the speedy trial
status of any previously filed misdemeanor, a felony may be charged and the defendant
brought to trial within the speedy trial time frames applicable to felonies."
Applying the reasoning of Mercer and Nesworthy here, notwithstanding
the speedy trial status of the previously-filed felony charge against Borko, the State was
free to file the misdemeanor charge against him within the speedy trial time frame
applicable to misdemeanors. The State failed to do so.
As such, we affirm the order of the county court discharging the
misdemeanor information against Borko, and we answer the certified question of the
county court in the negative.
Affirmed.
CASANUEVA and MORRIS, JJ., Concur.
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