FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D15-5620
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MARVIN E. NOACK,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Leon County.
Kevin J. Carroll, Judge.
December 27, 2018
WINOKUR, J.
Marvin Noack appeals the judgment and sentence following
his second trial, at which he was again convicted of second-degree
murder and attempted second-degree murder. We reject Noack’s
argument that he was entitled to discharge because the State
failed to try him within ninety days of the reversal of his
convictions from his first trial. Noack also argues that his
convictions must be reversed due to the trial court’s erroneous
admission of double-hearsay testimony. We agree and reverse his
second-degree murder conviction, but affirm his conviction for
attempted second-degree murder. 1
I. Speedy Trial
After the State charged Noack in 2008, he waived the
speedy-trial time limits set forth in Florida Rule of Criminal
Procedure 3.191(a). 2 Noack was convicted, but we reversed his
convictions on appeal. Noack v. State,
61 So. 3d 1208 (Fla. 1st
DCA 2011). The State petitioned for review, which the supreme
court denied. State v. Noack,
135 So. 3d 290 (Fla. 2014). Ninety-
three days after the supreme court denied review, Noack filed a
notice of expiration of time for speedy trial under Rule 3.191(h),
claiming that the State failed to try him within the ninety-day
period after appeal set forth in Rule 3.191(m). The trial court
struck the notice and denied Noack’s subsequent motion for
discharge.
Noack argues that his 2008 waiver no longer applied
following the appellate mandate ordering a new trial and that the
State was required to try him within ninety days under Rule
3.191(m). He cites State v. Wilkes,
694 So. 2d 127 (Fla. 5th DCA
1997), as support and requests we adopt Judge LaRose’s view
expressed in Bryant v. State,
918 So. 2d 331 (Fla. 2d DCA 2005)
(LaRose, J., concurring). We review this issue de novo. See
Williams v. State,
946 So. 2d 1163, 1164 (Fla. 1st DCA 2006).
A waiver of Rule 3.191 rights continues to apply even after
an appeal and remand to the trial court. Accordingly, if the
accused waived the Rule 3.191 time limits before trial, and on
appeal the case is remanded for trial, the ninety-day post-appeal
speedy-trial provision of Rule 3.191(m) does not apply. See Koshel
v. State,
689 So. 2d 1229, 1230 (Fla. 5th DCA 1997); see also State
1 We affirm without comment as to the other three
arguments Noack raises.
2 See Stewart v. State,
491 So. 2d 271, 272 (Fla. 1986)
(holding that a request for continuance prior to the expiration of
the applicable time period under Rule 3.191 constitutes a waiver
of the time limits under the rule).
2
v. Bowers,
1 So. 3d 1120, 1121 (Fla. 1st DCA 2009) (pre-trial
waiver applies after mistrial); State v. Ryder,
449 So. 2d 398 (Fla.
2d DCA 1984) (same); State ex rel. Gibson v. Olliff,
452 So. 2d 110
(Fla. 1st DCA 1984) (same). This rule of law plainly applies to
Noack, and demonstrates that the trial court did not err in
concluding that Noack’s post-appeal motion for discharge was
foreclosed by his pre-appeal waiver.
In spite of this clear rule of law, Noack argues that Wilkes
entitles him to discharge because, even though Wilkes waived the
time limits under Rule 3.191(a), the district court still held that
the State had ninety days to try Wilkes after the mandate. 694
So. 2d at 128. We disagree that Wilkes requires reversal. Wilkes
moved for discharge pursuant to Rule 3.191 prior to the appeal;
in fact, the propriety of the trial court’s denial of the discharge
motion was the issue on appeal. Rule 3.191(j) states, “If the court
finds that discharge is not appropriate . . ., the pending motion
for discharge shall be denied, provided, however, that trial shall
be scheduled and commence within 90 days of a written or
recorded order of denial.” In other words, if the trial court denies
a motion for discharge because the defendant had waived the
time limits, the motion itself revokes the waiver and requires the
state to try the defendant ninety days from the order denying the
motion. In such a circumstance, there is no reason to apply the
pre-trial waiver after the appeal. The district court in Wilkes did
not, ordering that Wilkes had to be tried within the period
permitted by Rule 3.191(m) after the appeal. Nothing of the sort
occurred here (or in Koshel, Bowers, Ryder, or Olliff). Noack did
not move for discharge under Rule 3.191 before his first trial, so
his waiver of the Rule 3.191(a) time limits remained in place
after his appeal.
We also decline to adopt the concurrence in Bryant, which
would require the State to try the defendant within ninety days
of a mandate reversing for new trial even if the defendant had
previously waived the Rule 3.191 time limits. 918 So. 2d at 331.
This view is inconsistent with Olliff,
452 So. 2d at 112, and
Bowers,
1 So. 3d at 1121, which bind us. 3 But even if we were not
3We reject Noack’s argument that we should treat pre-trial
waiver differently for an appellate mandate ordering a new trial
3
bound, we would not adopt this view for two reasons. First,
neither Rule 3.191 nor waiver of its time limits affects the
constitutional right every defendant has to a speedy trial. See
State ex rel. Butler v. Cullen,
253 So. 2d 861, 863 (Fla. 1971).
Second, even after waiver of the time limits under Rule 3.191,
“the defendant still retains the right to demand a speedy trial
within sixty days[.]” Butterworth v. Fluellen,
389 So. 2d 968, 970
(Fla. 1980). Rule 3.191(b) affords defendants “the right to demand
a trial within 60 days, by filing with the court a separate
pleading entitled ‘Demand for Speedy Trial,’ and serving a copy
on the prosecuting authority.” A defendant who wishes to revoke
a pre-appeal waiver of the Rule 3.191 time limits may file a
demand after the appeal, which puts the State on notice that it
must comply with the time limits of Rule 3.191. This procedure is
preferable to one where the defendant can announce an intent to
revoke an earlier waiver by springing a notice of expiration on
the State and compelling it to try the defendant within the
recapture period. Accordingly, we decline Noack’s request to
reverse our binding precedent. The trial court did not err in
striking Noack’s notice and denying his motion for discharge.
II. Trial
In this drug deal gone bad, Noack and Nelonza Pugh went
into a bedroom to sell marijuana to Fieshiton Smith and Cordell
Marcus. Shots were fired from at least two guns inside the
bedroom, and responding officers found Marcus shot and
transported him to the hospital. Smith fled with a gun in hand,
as well as Noack’s large bag of marijuana, which he hid at a
friend’s house before going to the hospital due to his own gunshot
wounds. Smith later died due to complications following surgery.
Noack and Pugh, who was also shot in his finger, fled the house
in their car and returned to Orlando. Marcus, who had nine prior
felony convictions at the time of trial, testified that he attempted
to purchase a small amount of marijuana from Noack, and Noack
was so upset with the size of the purchase that he pulled out a
gun and began shooting Marcus. Marcus testified that he did not
than following a mistrial, as both are treated equally under Rule
3.191(m).
4
see Noack shoot Smith and denied seeing Smith attempt to rob
Noack or in possession of a gun. Pugh, who was previously
convicted of being an accessory to second-degree murder in this
incident, also testified for the State. Pugh testified that Smith
pulled out a gun to rob Noack and himself, and that Pugh
struggled over the gun with Smith, eventually getting shot when
it discharged. Pugh denied ever having seen Noack with a gun
and did not know how or by whom Smith was shot. Pugh testified
that he and Noack immediately drove four hours to Orlando upon
fleeing, but could not remember the content of any conversations
during this drive.
The State called Kyle Troop, a homicide investigator at the
time of the incident who had interviewed Pugh, with counsel
present, after finding his DNA at the scene. The prosecutor asked
Investigator Troop if, during this interview, Pugh had told him
that Noack admitted to shooting Smith. Noack’s counsel objected
to the question as hearsay within hearsay, arguing that there
was no exception for the second link—Pugh’s statement to
Investigator Troop—and this testimony could at most come in as
impeachment evidence with a limiting instruction. The State
argued that this testimony came in at Noack’s first trial and was
necessary as a result of Pugh’s untruthful testimony regarding
his conversations with Noack following the incident. After
counsel reiterated his objection and requested a limiting
instruction at minimum, the trial court overruled the objection.
Investigator Troop then testified that Pugh had in fact told him
that Noack told Pugh that Noack had shot Smith.
III. Hearsay Within Hearsay
We review a trial court’s admission of evidence for abuse of
discretion; however, this discretion is limited by the evidence
code and precedent. See State v. Crofoot,
97 So. 3d 866, 868 (Fla.
1st DCA 2012). Noack argues that the trial court erred in
allowing double hearsay to be admitted into evidence, specifically
that Pugh’s statement to Investigator Troop was inadmissible
hearsay.
“‘Hearsay’ is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” § 90.801(1)(c),
5
Fla. Stat. “Hearsay within hearsay” is admissible if “each part of
the combined statements conforms with an exception to the
hearsay rule[.]” § 90.805, Fla. Stat.; see also Gosciminski v. State,
994 So. 2d 1018, 1026 (Fla. 2008). There is no dispute that
Noack’s statement to Pugh is admissible as an admission by
Noack. § 90.803(18), Fla. Stat. However, we find no hearsay
exception for Pugh’s statement to Investigator Troop, 4 and the
State has never presented a valid reason that this statement is
admissible. 5 Thus, the statement could not be admitted as
substantive evidence of Noack’s guilt. Pugh’s statement to
Investigator Troop may have been admissible as impeachment
evidence, but this question does not need to be answered, for two
4 We cannot find Pugh “unavailable” due to lack of memory
under section 90.804(1)(c), Florida Statutes, because the State
argued at trial that Pugh was being untruthful (not that he did
not remember) and the trial court consequently made no findings
as to Pugh’s memory. See Charles W. Ehrhardt, Ehrhardt’s
Florida Evidence § 804.1 at 1225 (2018 ed.) (Professor Ehrhardt
explaining that “[m]erely asserting a claim of a lack of memory is
not sufficient,” and the trial court is required “to find that the
witness has suffered lack of memory before unavailability
results.”). Moreover, even had Pugh been unavailable, it does not
appear any applicable exception under section 90.804(2) exists.
5 The fact that the State introduced this testimony without
objection at the earlier trial does not permit its admission here.
The second basis, argued at trial and now on appeal, is that the
statement was necessary due to Pugh’s untruthful testimony. See
Rodriguez v. State,
753 So. 2d 29, 42 (Fla. 2000) (discussing the
“opening the door” concept). However, the testimony that the
State contends opened the door was elicited by the State on
direct-examination of Pugh, its own witness. The State has not
explained why it should be able to open its own door, and cannot.
See Brunson v. State,
31 So. 3d 926, 928 (Fla. 1st DCA 2010)
(“This principle is triggered when one party’s evidence presents
‘an incomplete picture’ and fairness demands the opposing party
be allowed to ‘follow up in order to clarify . . . and make it
complete.’” (quoting Hudson v. State,
992 So. 2d 96, 110 (Fla.
2008) (emphasis supplied))).
6
reasons. First, the trial court denied Noack’s request for an
instruction limiting the use of the evidence to impeachment of
Pugh. See Henderson v. State,
135 So. 3d 472, 478 (Fla. 2d DCA
2014) (“Because the trial court erred in admitting the [double
hearsay] testimony as substantive evidence, the trial court also
erred in denying the defense’s request for a limiting
instruction.”). Second, the State did use the testimony as
evidence of Noack’s guilt in closing argument, not just to impeach
Pugh’s testimony.
IV. Harmless Error
The State presents no argument that any error is harmless.
“That said, we have an obligation to conduct an independent
harmless error analysis.” Raymond v. State, 43 Fla. L. Weekly
D2460, D2461 (Fla. 5th DCA Nov. 2, 2018). Noack presented two
defenses at trial: 1) he was not one of the shooters, and 2) if he
was a shooter, his actions were justified because Smith attempted
to rob him. The jury’s finding of guilt demonstrates that it did not
believe Smith attempted to rob Noack, and the disputed
testimony does not implicate this defense. However, there was no
direct evidence that Noack shot Smith aside from the
erroneously-admitted testimony of Investigator Troop. Marcus
did not see Noack shoot Smith, and Pugh testified that he never
saw Noack with a gun, further stating that Smith’s gun
discharged (at least once) while he and Smith fought over it. In
closing arguments, Noack’s counsel admitted that Noack was
present at the scene to sell marijuana, but disputed that he was
the shooter. The State told the jury that Noack “told Mr. Pugh
that he was the one who shot [Smith] in the house that day.
That’s the statement [Noack] made to his friend.” We cannot
conclude that the double-hearsay testimony was harmless as to
the second-degree murder conviction of Smith. In contrast, this
testimony as to Smith’s shooter was harmless as to the attempted
second-degree murder conviction of Marcus, particularly
considering Marcus’ testimony that Noack shot him multiple
times and frank admission that he did not see Noack shoot
Smith.
7
V. Conclusion
We reject Noack’s argument that the trial court should have
discharged him despite his prior waiver because his Rule 3.191
speedy trial rights “spring anew” upon an appellate mandate
ordering a new trial. But we agree that the trial court erred in
allowing the admission of double-hearsay testimony by
Investigator Troop and in denying Noack’s request for a limiting
instruction. We find this error harmful as to the second-degree
murder conviction and REVERSE this conviction, but find it
harmless as to the attempted second-degree murder conviction
and AFFIRM this conviction.
BILBREY and JAY, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Michael Ufferman of Michael Ufferman Law Firm, P.A.,
Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Steven Edward Woods,
Assistant Attorney General, Tallahassee, for Appellee.
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