STATE OF FLORIDA,

Appellant,

v.

DONALD WILSON,

Appellee.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D13-5494

_____________________________/

Opinion filed May 12, 2015.

An appeal from the Circuit Court for Hamilton County.

Andrew J. Decker, III, Judge.

Pamela Jo Bondi, Attorney General, and Justin D. Chapman, Assistant Attorney 

General, Tallahassee, for Appellant.

Justin Wade Blow, Lakewood, Colorado, for Appellee.

RAY, J.

The State of Florida appeals a speedy trial discharge granted to Donald 

Wilson after a defense-moved continuance pushed his trial date beyond the speedy 

trial period and recapture window of Florida Rule of Criminal Procedure 3.191. 

The trial court charged the continuance to the State upon finding that the defense 

could not be prepared for trial within the speedy trial deadline due to substantial, 
prejudicial discovery violations by the State. We reverse because the record does 

not establish that the severe sanction of dismissal is warranted. 

I.

Wilson was arrested for lewd or lascivious molestation on December 12, 

2012, and filed a notice of intent to participate in discovery five days later. He was 

charged on February 5, 2013, and the State filed its initial discovery exhibit on 

April 15, 2013. The discovery exhibit was late and incomplete. With discovery still 

outstanding, the default speedy trial period under Rule 3.191(a) ended on June 5, 

2013.

On June 12, 2013, the defense filed a written notice of expiration of speedy 

trial time and orally requested a hearing to address discovery violations, notifying 

the court that the State was still providing discovery at that late date. This notice 

triggered a requirement that the court hold a hearing within five days and, if 

appropriate based on Rule 3.191 and representations made at the hearing, schedule 

a trial within ten days of the hearing. Fla. R. Crim. P. 3.191(a), (p). The court 

scheduled trial to begin within this time frame, known as the recapture window,1

understanding that the discovery issues would be taken up at a hearing on June 17. 

In the meantime, on June 14, Wilson filed a motion for a thirty-day continuance to 

be charged to the State. 

1 State v. S.A., 133 So. 3d 506, 507 (Fla. 2014) (holding that the recapture window 

is calculated as two separate five- and ten-day time periods).

2

 
After the June 17 hearing, with days remaining in the recapture window, the 

court granted Wilson’s motion, continuing the case to an unspecified date beyond 

the recapture window, and charged the continuance to the State. The court 

concluded that the State’s delay in providing many discovery items, while 

unintentional, was inexcusable and substantially prejudiced Wilson’s ability to 

prepare for a timely trial. The court recognized that its decision would result in a 

speedy trial discharge but found, without analyzing any alternative remedies, that it 

had no other choice. Some months later, Wilson moved for a speedy trial 

discharge, which was granted.

II.

Before granting a State-charged continuance to a date beyond the recapture 

window, a court should consider three principles. First, a defense-moved

continuance should not be charged to the State unless the State has violated a rule. 

State v. Naveira, 873 So. 2d 300, 309 (Fla. 2004) (holding that when the State filed 

charges and produced all its discovery on the last day of the speedy trial period, the 

fact that the defendant needed more than fifteen days to use the discovery did not 

justify charging a continuance to the State). Second, if any remedy will “provide 

relief to the defendant and permit the State to move forward with its case within 

the speedy trial and recapture periods provided by the rules,” the trial court must 

select it. State v. Valdez, 44 So. 3d 184, 187 (Fla. 2d DCA 2010); see also Pura v. 

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State, 789 So. 2d 436, 440 (Fla. 5th DCA 2001) (holding that lesser sanctions must 

be used to avoid punishing the public); cf. Richardson v. State, 246 So. 2d 771, 

774 (Fla. 1971) (noting that the court’s sanction authority is not “intended to 

furnish a defendant with a procedural device to escape justice”). Third, a defendant 

seeking to take advantage of the speedy trial rule must have acted “in a manner 

consistent with a desire to secure [a] speedy trial,” and not simply a speedy 

discharge. Valdez, 44 So. 3d at 186; see McKenney v. State, 967 So. 2d 951, 953 

(Fla. 3d DCA 2007) (recognizing that a continuance is partially chargeable to both 

sides when it is necessitated by State discovery violations that could have been 

corrected earlier upon a proper motion by the defense); State v. Gilliam, 884 So. 2d 

128, 130 (Fla. 2d DCA 2004) (holding a speedy trial discharge improper where the 

defense would not have been ready for trial regardless of the discovery violations). 

Application of these principles strikes the proper balance between the defendant’s 

discovery rights and the public’s interest in the prosecution of criminal cases, while 

also ensuring that the State’s discovery violations, and not gamesmanship, are truly 

the reason the defendant has not received a trial within the speedy trial limits 

provided under Rule 3.191.

III.

Here, the record supports the majority of the court’s findings of discovery 

violations by the State. It does not, however, sufficiently support the court’s 

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decision to cure these violations with a State-charged continuance to a date beyond 

the recapture window. 

As an initial matter, the trial court reversibly erred when it failed to consider 

whether any prejudice resulting from the State’s violations could have been cured 

with a shorter continuance to a date within the recapture window or perhaps by 

exclusion of evidence or testimony. See State v. Guzman, 697 So. 2d 1263, 1264 

(Fla. 3d DCA 1997) (“any prejudice to the defendant’s preparation could have 

been cured by a short continuance to a date still within the speedy trial time”); 

Valdez, 44 So. 3d at 187 (noting exclusion of evidence as an example of a lesser 

sanction); Fla. R. Crim. P. 3.220(b)(3), (n) (providing that a court may strike a 

witness or exclude evidence not timely disclosed). 

Moreover, the trial court’s inquiry into whether the discovery violations 

resulted in prejudice was lacking given the circumstances of this case. For 

example, the trial court did not ask Wilson’s counsel what efforts he made to put 

the new discovery to use in the time between its receipt and the hearing on the 

motion for a continuance, or whether the time remaining in the recapture period 

would be sufficient. Valdez, 44 So. 3d at 186 (“As long as discovery is provided in 

time to allow the defendant to utilize it prior to the expiration of speedy trial, 

including the recapture period, there is no prejudice.”). In addition, once the court 

rejected the State’s claim not to know the identities of two juvenile witnesses,

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whom the State had identified in its discovery exhibit only by initials, it could have

ordered the State to find those names and provide them promptly. See Von 

Waldner v. State, 860 So. 2d 1061, 1062 (Fla. 5th DCA 2003) (noting trial court’s 

requirement of State to provide witnesses because of previous discovery 

violations). Finally, the court could have required Wilson’s counsel to prepare for 

trial with the new information, pending a final decision as to whether the State’s 

violations prevented sufficient preparation. An examination of the situation closer 

to the end of the recapture window would have allowed the trial court to determine 

the extent of the prejudice and inquire as to the contents of the new discovery so 

that it could determine whether the exclusion of evidence would appropriately 

address the violations. See State v. Nelson, 26 So. 3d 570, 576 (Fla. 2010) (noting 

that “the recapture period illustrates the principle that a defendant has a right to 

speedy trial, not a right to speedy discharge without trial”). This type of inquiry is 

exacting, but it is necessary due to the great cost to the public that is occasioned by 

a speedy trial discharge. Cf. Richardson, 246 So. 2d at 775 (“ ‘[T]he court’s 

discretion can be properly exercised only after the court has made an adequate 

inquiry into all of the surrounding circumstances.’ ” (quoting Ramirez v. State, 241 

So. 2d 744, 747 (Fla. 4th DCA 1970))).

To a lesser extent, we are concerned that the trial court did not weigh 

Wilson’s failure to seek an order compelling the State to provide missing discovery 

6
before the expiration of the speedy trial period. While Wilson’s counsel was not 

aware of all the violations until after that time, the State’s failure to provide certain 

names and addresses was clear from the face of the initial discovery exhibit, which 

the State provided almost two months before Wilson filed the notice. The 

defendant cannot properly declare, through a notice of expiration of speedy trial 

time, that he is ready for trial while knowing that substantial discovery violations 

have been ongoing for several weeks and not seeking judicial intervention 

beforehand. See Valdez, 44 So. 3d at 186; Rodriguez v. State, 933 So. 2d 1263, 

1264 (Fla. 3d DCA 2006) (failure of defense to file a motion to compel discovery 

before a joint continuance waived speedy trial).

Ultimately, because the record does not show that a State-charged 

continuance outside the recapture window was required, we reverse and remand 

for reinstatement of the criminal action in the circuit court. 

LEWIS, CJ., and BENTON, JJ., CONCUR.

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