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[W] Lovelace v. State6/1/2005
The issue presented by this petition for writ of prohibition is whether a violation of the speedy trial rule for a misdemeanor DUI charge precludes a felony DUI charge based on the same incident and prior DUI convictions. We hold that it does and certify conflict with State v. Jackson, 784 So. 2d 1229 (Fla. 1st DCA 2001).
Florida Rule of Criminal Procedure 3.191(a) provides that a person charged with a misdemeanor must be brought to trial within 90 days of arrest and that a person charged with a felony must be brought to trial within 175 days of arrest. Under rule 3.191(p) a defendant, after the expiration of the proscribed time period, may file a "notice of expiration of speedy trial time" and, with some exceptions not applicable here, must be brought to trial within 15 days or "forever discharged from the crime."
Defendant was arrested and issued a citation for misdemeanor DUI on August 11, 2004. A few days after the ninety day speedy trial period expired, defendant filed a notice of expiration of speedy trial time on November 15, 2004, in county court. The state then filed a "no information" on November 19, 2004. Defendant was not brought to trial and moved for discharge on November 30, 2004, which was the end of the fifteen day recapture period.
The next day, on December 1, 2004, the state filed a felony DUI charge in circuit court based on the same incident and prior DUI convictions. See § 316.193(2)(b)1, Fla. Stat. (2004). The county court in which the misdemeanor charge had been pending held a hearing on defendant's motion for discharge on December 6, 2004 and concluded it had no jurisdiction to grant the motion because of the "no information" filed by the state.
A "no information," which is synonymous with "no action," is filed by a prosecutor for the purpose of letting a person who has been arrested know that an information will not be filed or an indictment will not be sought. Purchase v. State, 866 So. 2d 208 (Fla. 4th DCA 2004). Neither informations nor indictments, however, are used for prosecuting misdemeanors. Because the charging document in this case was the traffic citation, Florida Traffic Court Rule 6.040(b), and there was no reason to inform the defendant that an information would not be filed, we assume that the state intended to nol pros the misdemeanor when it filed the "no information." The county court's ruling that it had no jurisdiction because of the filing of the "no information" is consistent with the conclusion that the state intended to nol pros. In any event it makes no difference what the state intended by filing the "no information."
After the county court concluded it had no jurisdiction to grant the motion for discharge, defendant filed a motion for discharge in circuit court, where the felony information was pending, which was denied. His motion was based on State v. Woodruff, 676 So. 2d 975 (Fla. 1996), in which it was held that the discharge of a misdemeanor DUI in county court based on the speedy trial rule would preclude a felony prosecution based on the same incident and prior DUI convictions. Defendant seeks a writ of prohibition, which is the remedy for the improper denial of the right to a speedy trial. Lowe v. Price, 437 So. 2d 142 (Fla. 1983).
Under rule 3.191(p), if a defendant is not brought to trial within fifteen days after filing a notice of expiration of speedy trial time, the defendant must be "forever discharged from the crime." In the present case defendant was not brought to trial within fifteen days of the filing of his notice of expiration of speedy trial period, but the state argues that the speedy trial period under these facts is the 175 day period for felonies, not the 90 da
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