NOT FINAL UNTIL TIME EXP IRES 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. 2D14-5053 ) TODD J. MEYERS, ) ) Appellee. ) 

### ) Opinion filed November 4, 2015. Appeal from the Circuit Court for Pinellas County; Chris Helinger, Judge. Pamela Jo Bondi, Attorney General, Tallahassee, and Cornelius C. Demps, Assistant Attorney General, Tampa, for Appellant.

Ricardo Rivera of Law Office of Carlson & Meissner, Clearwater, for Appellee.

CRENSHAW, Judge.

On May 18, 2014, after showing all the telltale signs of inebri ation while behind the wheel of his car, Todd Meyers was stopped by police. He failed field sobriety tests and refused any breath tests. He was then arres ted for felony driving under the influence of alcohol (DUI) after the officer noted, a nd placed directly on the- 2 - traffic citation, Meyers' three prior DUIs. In the same citati on, Meyers was charged with a misdemeanor for his failure to submit to intoxication testing . The next day, the State filed the traffic citation in county court and on July 28, file d an information in the circuit court charging a felony for the DUI and a misdemeanor for Meyer s' failure to take the

breath test. The misdemeanor speedy trial wi ndow closed on August 16. Meyer s filed a notice of expiration of speedy trial in both courts on Septem ber 15, and ultimately the circuit court granted the discharge on both counts; the State a ppeals. Because the court erred in concluding the DU I was governed by the misdemean or 90-day clock rather than the felony 175-day clock, we reverse the order of d ischarge as to the felony. 1 Meyers and the circuit court lump ed this case in with many othe r of its ilk in which felony DUI based on prior convictions is charged. How ever, a felony is a felony is a felony, and in this case, the DUI was never anything but a felony. Florida Rule of Criminal Procedure 3.191(a) state s, in pertinent part, "every p erson charged with a crime shall be brought to trial within 90 days of arrest if the crime charged is a misdemeanor, or within 175 days of arrest if the crime charged is a felony." It is undisputed that the State charged Meyers in the circuit court b y information with felony DUI for a fourth lifetime DUI within the 90-day misdemeanor spe edy trial window. The State never filed a nolle prosequi in the county court case or moved to consolidate the proceedings. Notably, the traffic citation first filed in the county court reflected the three

1 As to the misdemeanor count, we affirm on the record before us.- 3 - prior DUIs; there is no credible claim that Meyers was unaware he was being charged with felony DUI. In this case, the court granted Meyers a discharge on the felon y DUI on speedy trial grounds. This was error. The felony here was alw ays a felony: the officer who wrote the citation had already concluded that Meyers had co mmitted DUI and had already checked Meyers' prior convictions to know that the offe nse was Meyers' fourth DUI, a third-degree felony. See § 316.193(2)(b)(3), Fla. Stat. (2013); State v. Woodruff, 676 So. 2d 975, 977 (Fla. 1996). The court correctly noted the elements of felony DUI based on prior convictions: (1) a DUI and (2) prior convictions . See Woodruff, 676 So. 2d at 977; see also Fla. Std. Jury Instr. (Crim.) 28.2 (definin g elements of DUI and providing that when proven, an additional instruction is requir ed for element of prior convictions). But the court erred in concluding that the pendi ng DUI charge was governed by the misdemeanor speedy trial clock. While the unde rlying element of DUI for felony and misdemeanor DUI is the same, the State did not h ave to prove misdemeanor DUI plus prior convictions such that the DUI would be governed by the misdemeanor speedy trial clock. S ee Woodruff, 676 So. 2d at 97 7. Rather, the State had to prove one offense—felony DUI—of which simple DUI is mere ly one element. See Fla. Std. Jury Instr. (Crim .) 28.2. Thus, the proceedings were governed by the felony clock and not the misdemeanor clock. The circuit court relied in part on Brady v. State, 934 So. 2d 659, 662 (Fla. 2d DCA 2006). However, Brady is distinguishable. In Brady, th e defendant was charged with misdemeanor DUI and separately with felony drug ch arges. Id. at 661. There, the speedy trial clock ran on the DUI because it was gov erned by the- 4 - misdemeanor clock and not the felony clock based on the State's failure to properly

consolidate the DUI with the fe lony drug charges. Id. at 662; see Fla. R. Crim. P. 3.191(f) ("When a felony and a misdemeanor are consolidated for disposition in circuit court, the misdemeanor shall be governed by the same time perio d applicable to the felony." (emphasis added)). But here, Meyers was charged with felony DUI; he was never charged with misdemeanor DUI. Thus, unlike in Brady, Mey ers' offense was governed by the felony speedy trial clock. Therefore, Meyers w as improperly discharged on speedy trial grounds as to the felony, and we rev erse that portion of the

circuit court's order. Reversed in part; affirmed in part.

MORRIS, J., Concurs. SILBERMAN, J., Concurs in result only.