Wallace and Thomas v. State , 2016 Fla. App. LEXIS 5597 ( 2016 )

Third District Court of Appeal
State of Florida
Opinion filed April 13, 2016.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D16-0352
Lower Tribunal No. 06-18561 BC
________________
Arthur Lee Wallace and Shakyna Danaya Thomas,
Petitioners,
vs.
The State of Florida,
Respondent.
A Case of Original Jurisdiction – Prohibition.
Herbert Erving Walker III, for petitioners.
Pamela Jo Bondi, Attorney General, and Robert Martinez Biswas and
Michael W. Mervine, Assistant Attorneys General, for respondent.
Before ROTHENBERG, EMAS, and FERNANDEZ, JJ.
ROTHENBERG, J.
Shakyna Danaya Thomas (“Thomas”) and Arthur Lee Wallace (“Wallace”),
who are husband and wife, seek a writ of prohibition to prevent further prosecution
of the charges against them in this case. Thomas contends that continuation of the
prosecution of the charges against her violates her right to a speedy trial pursuant
to Florida Rule of Criminal Procedure 3.191, and Wallace contends that further
prosecution of him for the offense of accessory after the fact is in violation of the
same speedy trial rule and is additionally barred by the statute of limitations under
section 775.15(2)(b), Florida Statutes (2006). As will be discussed below, both of
the defendants’ claims are without merit, and thus, we deny the petition.
PROCEDURAL HISTORY
On March 14, 2007, Thomas was arrested pursuant to an arrest warrant
dated July 26, 2006, for two counts of first degree murder committed on or about
June 6, 2006. Pending review by the Grand Jury, the State filed an information on
March 30, 2007, charging Thomas with two counts of second degree murder, one
count of armed home invasion robbery, one count of accessory after the fact to
murder and home invasion robbery. The March 30, 2007 information also charged
Parley Jay Paskett (“Paskett”) with various charges.
On May 22, 2007, the State filed an indictment charging Paskett with two
counts of first degree murder, one count of armed home invasion robbery, and one
count of possession of a firearm by a convicted felon. This indictment also
charged Thomas only with accessory after the fact to murder and/or home invasion
2
robbery.
On August 20, 2007, well within the speedy trial period, Thomas was
granted a defense continuance, thereby waiving her right to a speedy trial. See Fla.
R. Crim P. 3.191(j)(2) (providing that a defendant waives his or her right to a
speedy trial by being unavailable for trial or by taking actions that render the
failure to hold a trial attributable to the accused); State ex rel. Butler v. Cullen, 253
So. 2d 861, 863 (Fla. 1971) (holding that when a defense continuance is granted,
the time limitations under the speedy trial rule are no longer applicable).
On September 17, 2008, an amended or superseding indictment was filed
maintaining the charges filed on May 22, 2007 against Thomas and Paskett, but
adding Wallace and charging him with accessory after the fact to murder and/or
home invasion robbery. Wallace was granted a defense continuance on January
26, 2009, well before the April 9, 2009, 175-day speedy period, thereby waiving
his right to a speedy trial.
Over the next several years, Thomas and Wallace were granted numerous
defense continuances.1 The delay and continuances were based, in part, on the
1Thomas
Since her initial continuance and waiver of her right to a speedy trial,
Thomas was granted eleven additional continuances: December 3, 2007; August
11, 2008; January 6, 2009; January 20, 2010; June 3, 2010; October 19, 2010;
February 10, 2011; August 25, 2011; April 5, 2012; May 31, 2012; January 15,
2015.
Wallace
Since his initial continuance on January 26, 2009, Wallace was granted nine
3
parties’ agreement to allow the State to try Paskett first because the State was
seeking the death penalty as to Paskett. However, on January 26, 2015, just prior
to the scheduled trial, Paskett entered into a negotiated plea with the State wherein
he agreed to cooperate with the State and provide truthful testimony against
Thomas and Wallace. After Paskett was debriefed by the State, the State sought
and obtained a superseding indictment against Thomas upgrading the charges
against her from accessory after the fact to two counts of first degree murder and
one count of armed home invasion robbery. The State did not seek additional
charges against Wallace and he remains charged with accessory after the fact to
murder and/or home invasion robbery under the September 17, 2008 indictment.
On December 2, 2015, Thomas filed a motion to dismiss the charges against
her for violation of the speedy trial rule, and Wallace filed a motion to dismiss the
sole charge filed against him based on a violation of the speedy trial rule and the
statute of limitations. On January 8, 2016, the trial court entered an order denying
Thomas’ motion to dismiss, and on January 11, 2016, the trial court entered an
amended order again denying Thomas’ motion to dismiss and a separate order
denying Wallace’s motion to dismiss. The January 11, 2016 orders are the basis of
the petition for writ of prohibition before this Court.
additional defense continuances: January 20, 2010; June 3, 2010; October 19,
2010; February 10, 2011; August 25, 2011; April 5, 2012; May 31, 2012; January
15, 2015; April 17, 2015.
4
ANALYSIS
I. The Speedy Trial Issue
Both Thomas and Wallace contend that the continuation of the prosecution
of the charges against them violates their rights to a speedy trial. Their arguments
on this issue are meritless.
Florida Rule of Criminal Procedure 3.191(a) provides that all defendants are
entitled to be brought to trial within 175 days of arrest without demanding the right
to a speedy trial if the crime charged is a felony. The 175-day period begins to run
when the defendant is taken into custody. See Fla. R. Crim. P. 3.191(a), (d). The
State may file charges against a defendant at any time during the speedy trial
period. See State v. Naveira, 873 So. 2d 300, 305 (Fla. 2004). However, a
defendant waives his or her right to a speedy trial by being unavailable for trial or
by taking actions that render the failure to hold a trial attributable to the accused or
his or her counsel. See Fla. R. Crim. P. 3.191(j)(2); State v. Guzman, 697 So. 2d
1263, 1264 (Fla. 3d DCA 1997) (holding that “a successful defense motion for
continuance waives the right to discharge under the speedy trial rule”).
A speedy trial waiver is an ongoing waiver. It applies to newly filed charges
that arise from the same incident. See State v. Nelson, 26 So. 3d 570, 576 (Fla.
2010) (“This waiver is construed as an ongoing waiver of speedy trial rights as to
all charges which emanate from the same criminal episode, including any newly
5
filed charges arising out of the incident.”). After waiving the right to a speedy
trial, the defendant must take affirmative action to restart the clock for a speedy
trial by filing a “Demand for Speedy Trial.” See Fla. R. Crim. P. 3.191(b).
If a defendant has not waived his speedy trial rights and he or she has not
been charged or tried within the applicable speedy trial period (175 days of arrest
for a felony, which is sometimes referred to as the “default period,” see Nelson, 26
So. 3d at 575), he or she is not automatically entitled to a discharge of the charges.
If a defendant has not waived his speedy trial rights and he has not been charged or
tried within the speedy trial period, the defendant must take affirmative action once
the speedy trial period has expired (on or after 175 days of arrest for a felony) by
filing a notice of expiration of speedy trial. Id. (holding that the speedy trial rule is
not self-executing and requires a defendant to take affirmative action to avail him
or herself of the remedies afforded under the rule by filing a “Notice of Expiration
of Speedy Trial Time”); State v. Gibson, 783 So. 2d 1155, 1158 (Fla. 5th DCA
2001) (“Pursuant to the provisions of rule 3.191(a), if an individual charged with a
felony is not brought to trial within 175 days of the date he or she is taken into
custody, the remedy of discharge provided in rule 3.191(p) may be invoked by
filing a notice of expiration of the 175-day time limit pursuant to rule 3.191(h).”).
This notice “invokes the defendant’s speedy trial rights and triggers the recapture
window, which is an additional ten-day period for the State to bring the defendant
6
to trial after the default speedy trial period expires.” Nelson, 26 So. 3d at 576; see
also Fla. R. Crim. P. 3191(a), (p)(2)-(3).
The record reflects that Thomas was arrested on March 14, 2007, charged on
March 30, 2007, and was granted a defense continuance on August 20, 2007,
thereby waiving her right to a speedy trial prior to expiration of the 175-day default
speedy trial period, which was on September 5, 2007. She has never filed a
Demand for Speedy Trial, seeking a speedy trial after her initial waiver. Instead,
she sought, and obtained, eleven additional continuances, thereby indicating that
she was not ready and available for trial.
Wallace was charged on September 17, 2008, and subsequently arrested on
October 16, 2008. Wallace was granted a defense continuance on January 26,
2009, thereby waiving his right to a speedy trial prior to the expiration of the 175-
day default speedy trial period, which was on April 9, 2009. He has never filed a
Demand For Speedy Trial seeking a speedy trial after his waiver and has, instead,
obtained nine additional defense continuances.
It is thus clear that neither Thomas’ nor Wallace’s right to a speedy trial has
been violated. The defendants’ reliance on State v. Agee, 622 So. 2d 473 (Fla.
1993); Gendon v. Fuller, 648 So. 2d 1183 (Fla. 1994); Reed v. State, 649 So. 2d
227 (Fla. 1995); and State v. Williams, 791 So. 2d 1088 (Fla. 2001), is misplaced.
In each of those cases the State either did not file charges within the speedy trial
7
period or, after filing charges, it voluntarily terminated the prosecution prior to a
waiver by the defendant of his right to a speedy trial and then refiled charges
after the speedy trial period had run. As the Fifth District Court of Appeal stated
in State v. Clifton, 905 So. 2d 172 (Fla. 5th DCA 2005), when it addressed the
Florida Supreme Court’s decisions in Agee, Gendon, and Williams:
[T]he State may not circumvent the purpose and intent of the speedy
trial rule by: 1) entering a nolle prosequi of the charges and waiting to
refile them until after the speedy trial period has expired; 2)
voluntarily dismissing the charges before they are formally filed and
filing formal charges after the time limit has expired; or 3) taking no
action after the defendant is arrested and waiting until after the speedy
trial period has expired to file formal charges. In these instances, the
state has essentially abandoned the prosecution and the recapture
provisions of the rule do not apply, with the result that the defendant
must be discharged.
Clifton, 905 So. 2d at 176.
There is no circumvention of the purpose or intent of the speedy trial rule
when the State files charges within the speedy trial time limits and the State files
an amended information or a superseding indictment because there is no
interruption in, or cessation of, the prosecution, and with the amended information
or superseding indictment the defendant maintains the ability to invoke the speedy
trial rule by filing a notice of expiration of the speedy trial period if the defendant
did not previously waive his right to a speedy trial. See Clifton, 905 So. 2d at 177
(noting that “[t]he filing of an amended information differs significantly from a
nolle prosequi, an announcement of ‘no action,’ and doing nothing to initiate
8
prosecution because . . . there is no interruption in, or cessation of, the prosecution
. . . [and] the defendant maintains the ability to invoke the speedy trial rule”).
Dismissal of the charges without the requirement of filing a notice of expiration of
the speedy trial period is only available to a defendant when an amended
information or a superseding indictment is filed after the speedy trial period has
expired and the defendant has not previously waived his right to a speedy trial.
Clifton, 905 So. 2d at 178.
Because the State charged Thomas and Wallace within the speedy trial
period, Thomas waived her right to a speedy trial prior to the filing of the
superseding indictments filed against her, and Wallace waived his right to a speedy
trial within the speedy trial period and the charges against him have never been
amended against him, Nelson applies, not Agee, Gendon, or Williams. In Nelson,
the Florida Supreme Court unequivocally held that a pre-expiration continuance
operates as a waiver of a defendant’s speedy trial rights as to all charges emanating
from the same criminal episode, including any newly filed charges arising out of
that criminal episode. Nelson, 26 So. 3d at 576-77.
We, therefore, conclude that the trial court correctly denied both defendants’
motions to dismiss the charges against them based on a violation of the speedy trial
rule.
II. The Statute of Limitations Issue
9
The statute of limitations argument applies only to Wallace. Thomas has not
alleged that the statute of limitations bars the prosecution of the charges against
her. Wallace was charged with accessory after the fact by indictment on
September 17, 2008. The charge against Wallace has not been changed or
amended since he was charged on September 17, 2008. Wallace, however, argues
that because a superseding indictment was filed against Thomas on March 11,
2015, the superseding indictment upgrading the charges against Thomas, without
also recharging Wallace, acts as a nolle prosse of the charge against Wallace. He
further contends that if we treat the superseding indictment against Thomas as a
nolle prosse of the charge against Wallace, then the three-year statute of limitations
for accessory after the fact has now expired, and the State is forever barred from
prosecuting Wallace. Under the facts of this case, we do not agree.
Although two or more defendants may be charged in the same information
or indictment, there is no requirement to do so. See Fla. R. Crim. P. 3.150(b). And
while “the filing of an information [or indictment] purporting to be a complete
restatement of the charges supersedes and vitiates an earlier information [or
indictment],” see State v. Anderson, 537 So. 2d 1373 (Fla. 1989), the March 11,
2015 indictment upgrading the charges against Thomas did not “purport to be a
restatement of the charges” against Wallace.
The March 11, 2015 superseding indictment upgrading the charges against
10
Thomas clearly specifies that it pertains only to the “B” defendant, which is
Thomas, and the indictment only includes Thomas’ case number. Wallace’s circuit
court case number is 13-2006-CF-018561-C00-xx (emphasis added), which means
that Wallace’s case was originally filed in Division 13, and it is a 2006 criminal
felony case assigned with a case number of 018561C, meaning that he is the “C”
defendant charged under that case number. The case number is generally stated as
F06-18561C. Thomas’ circuit court case number is 13-2006-CF-018561-B00-xx
(emphasis added), which means that her case was originally filed in Division 13,
and it is a 2006 criminal felony case assigned with a case number of 018561B,
meaning that she is the “B” defendant charged under that case number. Thomas’
case number is generally referred to as F06-18561B.
The heading of the March 11, 2015 indictment pertains only to “F06-
18561B” and it identifies the defendant being charged in that indictment as “(B)
SHAKYNA DANAYA THOMAS, Defendant.” The interoffice memorandum
filled out by the Assistant State Attorney, and which accompanied the indictment
submitted to the Grand Jury for consideration, also only lists Thomas and case
number F06-18561B.
We agree with Wallace that when charges are dismissed against an accused,
the State may refile the same charges unless prevented from doing so by a statute
of limitations and that if the charge against Wallace (accessory after the fact) was
11
nolle prossed or dismissed by the State in 2015, the State could not refile the
accessory after the fact charge against him because the three-year statute of
limitations has run on that charge. However, neither of those situations have
occurred in this case. The State has never announced a nolle prosse of the charges
against Wallace, the trial court has not dismissed the charges against Wallace, and
the superseding indictment sought and obtained against the “B” defendant
(Thomas) did not “purport” to be a restatement of the charges against anyone
except for the “B” defendant, Thomas. Thus, the March 11, 2015 indictment had
no effect on the charges pending against Wallace, the “C” defendant, or for that
matter Paskett, the “A” defendant, who has already pled guilty to the charges the
State brought against him in the September 17, 2008 indictment.
CONCLUSION
Because the trial court correctly denied the motions to dismiss the charges
against Wallace and Thomas on speedy trial grounds and the motion to dismiss the
charge against Wallace based on the argument that it is barred by the statute of
limitations, we deny the petition for writ of prohibition.
Petition denied.
12