State v. Templar-O'Brien , 2015 Fla. App. LEXIS 13203 ( 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. 2D14-1885
)
CIARAN E. LACHLAN TEMPLAR-O'BRIEN, )
)
Appellee. )
)
Opinion filed September 4, 2015.
Appeal from the Circuit Court for
Hillsborough County; Ronald Ficarrotta and
Samantha L. Ward, Judges.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Peter Koclanes, Assistant
Attorney General, Tampa, for Appellant.
Howard L. Dimmig, II, Public Defender, and
Richard J. Sanders, Assistant Public
Defender, Bartow, for Appellee.
CASANUEVA, Judge.
The State of Florida appeals an order dismissing charges against Mr.
Templar-O'Brien based on Florida's speedy trial rule set forth in Florida Rule of Criminal
Procedure 3.191. We conclude that the trial court erred in granting Mr. Templar-
O'Brien's motion for discharge and reverse.
I. Procedural History
On July 19, 2013, Mr. Templar-O'Brien was charged by information with
aggravated stalking, aggravated stalking while under an injunction, violation of a
stalking injunction, trespass, and giving a false name to a law enforcement officer. His
trial was originally set for mid-October 2013, but on October 7, Mr. Templar-O'Brien
moved for a continuance and specifically waived his right to a speedy trial. Although a
trial on the charges began on December 17, 2013, a mistrial was declared based on Mr.
Templar-O'Brien's request.
On December 31, 2013, Mr. Templar-O'Brien filed a pro se notice of
expiration of speedy trial. A pretrial hearing was held on January 7, 2014, and the initial
trial judge brought up the pro se notice.1 Defense counsel stated that he "would not be
adopting that." Another hearing was held on January 9, 2014, and the trial judge noted
that the case was set for trial on the following Monday, January 13. The State moved to
continue this trial date based on the unavailability of a witness, and the trial judge
denied the motion. Mr. Templar-O'Brien also moved to discharge his attorney and
represent himself and his motion was granted.
On the morning of January 13, the State again requested a continuance
based on the unavailability of a witness and the request was again denied. The State
then announced that it was going to nolle pros the case. Later that same day, the State
refiled the information and alleged the same offenses.
On January 29, 2014, Mr. Templar-O'Brien filed a motion to dismiss
pursuant to Florida Rule of Criminal Procedure 3.191. He alleged that at the hearing on
1A different trial judge was later assigned to the case in April 2014.
-2-
January 7, the trial judge sua sponte ordered that the notice of expiration of speedy trial
would be treated as a demand for speedy trial under rule 3.191. The transcript of the
hearing shows that this allegation is inaccurate--the trial judge never ordered that the
notice of expiration of speedy trial be treated as a demand for speedy trial. Mr.
Templar-O'Brien's motion also incorrectly alleged that he had not previously waived his
right to a speedy trial. The trial judge denied the motion to dismiss on January 30,
2014.
Thereafter, on Friday, March 18, Mr. Templar-O'Brien filed a motion for
discharge based on rule 3.191, a notice of expiration of speedy trial based on rule
3.191(m), and a demand for discharge based on rule 3.191(b)(4). He again incorrectly
alleged that the trial court treated his December 31 notice of expiration of speedy trial as
a demand for speedy trial.
A hearing was held on Mr. Templar-O'Brien's pleading on the following
Thursday, March 24, and the trial judge ruled that pursuant to rule 3.191(m), Mr.
Templar-O'Brien should have been brought to trial within ninety days of the mistrial,
which would have been March 17, 2014.2 The trial judge attempted to set the case for
trial on the following Monday, March 31, which was within the ten-day period required
by rule 3.191(p)(3).
On Monday, March 31, Mr. Templar-O'Brien noted that he had filed a
motion to recuse the trial judge that morning. The trial judge granted his motion.
2As discussed later, this was not required because a demand for speedy
trial has never been filed.
-3-
A successor trial judge was assigned to the case and at a hearing on April
3, 2014, she granted Mr. Templar-O'Brien's motion for discharge. The successor trial
judge ruled as follows:
I find that [the initial trial judge] treated the Notice of
Expiration of Speedy Trial as a Notice of Expiration of
Speedy Trial that was filed with the clerk on the 18th of
March; gave him a hearing date within the five days
envisioned by Rule 3.191, and held a hearing on the 24th;
set the case within ten days, which was the 31st. A Motion
to Recuse the judge was filed on the 31st.
The case was reassigned by blind rotation to this
division. We have jury panels in Hillsborough County only
available on Mondays, but I was here on Monday on the
31st, picking juries, so I was available to pick a jury. It's the
State's obligation to ensure that the Notice of Expiration of
Speedy Trial is fulfilled and it's the State's obligation to
ensure a jury panel.
Now, speedy trial has run; we are past day ten, after
the hearing. He has not been brought to trial. The Motion
for Discharge is granted.
II. Waiver of Speedy Trial, Mistrial, and Nolle Pros
We conclude that the successor trial judge erred in granting the motion for
discharge for several reasons. First, Mr. Templar-O'Brien specifically waived his right to
a speedy trial on October 7, 2013. The motion to continue filed on that day specifically
states, "Counsel has consulted with the Defendant who has no objection and
understands that speedy trial is waived upon the granting of this motion."
This waiver of speedy trial continued to apply after the mistrial was
ordered. Rule 3.191(m) states when a defendant is to be tried again, "the defendant
shall be brought to trial within 90 days from the date of declaration of a mistrial by the
trial court" and that if the defendant is not brought to trial within ninety days, the
-4-
defendant is entitled to the remedy described in subsection (p). Rule 3.191(p)(1)
provides that a defendant is not entitled to relief until the trial court has examined
subsection (j), which provides that a pending motion for discharge should not be
granted where the failure to hold trial is attributable to the accused. Here, a trial
continuance was attributable to Mr. Templar-O'Brien.
In State v. Ryder, 449 So. 2d 398, 398-99 (Fla. 2d DCA 1984), this court
held "that the defendant's pretrial waiver of his right to speedy trial applied through the
trial phase of the proceedings, including a retrial after mistrial." See also Koshel v.
State, 689 So. 2d 1229, 1230 (Fla. 5th DCA 1997) (holding that appellant's pretrial
waiver of his speedy trial rights waived the ninety-day period established in rule
3.191(m) because a waiver of speedy trial waives all provisions of the speedy trial rule
unless otherwise indicated in the written waiver); State ex rel. Gibson v. Olliff, 452 So.
2d 110, 112 (Fla. 1st DCA 1984) (same). Therefore, because Mr. Templar-O'Brien
waived his right to a speedy trial, he was not entitled to the remedy in subsection (p)
when the ninety-day period expired.
Further, the waiver of speedy trial continued to apply after the State nolle
prossed the information on January 13 and refiled it on the same day. "[W]hen a
defendant has by obtaining a continuance waived his speedy trial rights under Rule
3.191, Florida Rules of Criminal Procedure, and the information is nolle prossed, the
waiver carries over and is effective under the refiled information." State v. Condon, 444
So. 2d 73, 74 (Fla. 4th DCA 1984); see also Stewart v. State, 491 So. 2d 271, 272 (Fla.
1986) ("The state could not have violated rule 3.191(h)(2) by nol prossing the
information when the defendant had already waived his rights under the rule.").
-5-
Nevertheless, even though Mr. Templar-O'Brien had waived his right to a
speedy trial, he could "start the clock running again" by filing a demand for speedy trial
under rule 3.191(b). State v. Burgess, 153 So. 3d 286, 288 (Fla. 2d DCA 2014).3
Here, Mr. Templar-O'Brien has never filed a demand for speedy trial. Therefore, he was
not entitled to relief under rule 3.191.
III. Order Granting Motion for Discharge
At the April 3 hearing the successor trial judge ruled, "I find that [the initial
trial judge] treated the Notice of Expiration of Speedy Trial as a Notice of Expiration of
Speedy Trial that was filed with the clerk on the 18th of March." If she intended to rule,
as alleged by Mr. Templar-O'Brien, that the initial trial judge treated the December 31,
2013, notice of expiration of speedy trial as a demand for speedy trial under rule 3.191,
this was error. As previously mentioned, the transcript shows that this allegation is
false. Additionally, at the pretrial hearing on January 7, 2014, defense counsel stated
that he "would not be adopting that." A pro se notice of expiration of speedy trial period
and a motion for discharge filed while represented by counsel are nullities, having no
legal force or effect. State v. Craven, 955 So. 2d 1182, 1183 (Fla. 4th DCA 2007); see
also Harden v. State, 152 So. 3d 626, 627 (Fla. 3d DCA 2014) ("[A] pro se demand for
speedy trial that has not been adopted by the defendant's counsel cannot be
entertained on the merits."). Therefore, not only was the notice not treated as a
demand for speedy trial, the pleading was a nullity.
3
We note that rule 3.191(j)(4) provides that if a motion for discharge is
denied based on the defendant's previous waiver of speedy trial, "trial shall be
scheduled and commence within 90 days of a written or recorded order of denial."
However, there was no formal denial of the motion for discharge in this case.
-6-
On March 18, Mr. Templar-O'Brien did file a notice of expiration of speedy
trial citing rule 3.191(m), so perhaps the successor trial judge intended to rule that this
notice was treated as a demand for speedy trial. Regardless, even if the notice had
been treated as a demand for speedy trial, the trial judge would have had forty-five days
to set the case for trial after the hearing on March 24, pursuant to rule 3.191(b)(2).4 The
forty-five day period would not have expired until approximately May 8, and therefore,
the motion for discharge was improperly granted on April 3.
IV. Conclusion
Accordingly, the motion for discharge was improperly granted when Mr.
Templar-O'Brien had never filed a demand for speedy trial, and even if the March 18
notice of expiration of speedy trial is treated as a demand for speedy trial, the forty-five-
day period in which the State had to bring him to trial had not yet expired when the
discharge was ordered.
Reversed and remanded for further proceedings.
WALLACE and LUCAS, JJ., Concur.
4
If a trial was not held within fifty days, Mr. Templar-O'Brien could have
then filed a notice of expiration of speedy trial time pursuant to rule 3.191(b)(4) and (p).
At that point, the trial court would have been required to hold a hearing on the notice
within five days and then set the case for trial within ten days.
-7-