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[W] Lovelace v. State6/1/2005
ys for misdemeanors, relying on State v. Jackson, 784 So. 2d 1229 (Fla. 1st DCA 2001).
In Jackson, the defendant was arrested on October 21, 1999 and charged in county court with a DUI, but on January 10, 2000, the state entered a nol pros. On January 25, 2000, ninety-six days after his arrest, the defendant filed his notice of expiration of the ninety day speedy trial period. The state then filed an information in circuit court on February 3, 2000, charging felony DUI based on the same incident and prior DUI convictions. Defendant, who had not been brought to trial within fifteen days of his notice of expiration of speedy trial period, obtained a county court order granting his motion for discharge of the misdemeanor on March 27, 2000. The circuit court then ruled that the discharge of the underlying misdemeanor DUI made it impossible for the state to prove felony DUI under State v. Woodruff, 676 So. 2d 975 (Fla. 1996), and dismissed the information.
The state appealed and the first district reversed, holding that after the state nol prossed the misdemeanor DUI in county court, the county court no longer had jurisdiction to grant the motion for discharge based on the violation of the speedy trial rule. We are unable to reconcile that reasoning with State v. Agee, 622 So. 2d 473, 475 (Fla. 1993), in which our supreme court held that "when the State enters a nol 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." In addition, rule 3.191(o) states:
The intent and effect of this rule shall not be avoided by the state by entering a nolle prosequi to a crime charged and by prosecuting a new crime grounded on the same conduct or criminal episode or otherwise by prosecuting new and different charges based on the same conduct or criminal episode, whether or not the pending charge is suspended, continued, or is the subject of entry of a nolle prosequi.
The Jackson panel pointed out that, under rule 3.191(f), when a felony and misdemeanor are consolidated for trial in circuit court, the longer felony speedy trial applies to the misdemeanor charge. That rule, however, was not applicable in Jackson, because the misdemeanor charge was pending in county court, and not consolidated with a felony information pending in circuit court. The state's reliance on rule 3.191(f) in the present case is misplaced for the same reason.
In Jackson, as we noted earlier, the state filed the information in circuit court charging Jackson with a felony after the ninety day speedy trial period ran on the misdemeanor, but before the fifteen day window for trial expired. The holding of Jackson that this was sufficient to invoke the 175 day speedy trial period for felonies is in conflict with Williams v. State, 622 So. 2d 477 (Fla. 1993), decided at the same time as Agee, and holding that recharging the defendant during the window period is too late. The speedy trial period is ninety days, and does not include the fifteen day window. P.S. v. State, 658 So. 2d 92 (Fla. 1995) (applying Agee and Williams to rule 8.090, the speedy trial rule for juveniles).
We conclude that, under Agee and rule 3.191(o), the county court should have granted defendant's motion for discharge of the misdemeanor DUI based on the expiration of the speedy trial period. This leaves the state unable to prosecute defendant for felony DUI, which requires a conviction on the misdemeanor charged in this case and two prior DUI convictions. Woodruff, 676 So. 2d at 977.
We therefore grant the petition for writ of prohibition and certify direct conflict with State v. Jackson, 784 So. 2d 1229 (Fla. 1st DCA 2001).
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