Supreme Court of Florida

____________

No. SC17-1014

____________

LUIS BORN-SUNIAGA,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

October 15, 2018

POLSTON, J.

We review the decision of the Fourth District Court of Appeal in State v. 

Born-Suniaga, 219 So. 3d 74 (Fla. 4th DCA 2017), which certified conflict with 

decisions of the First, Second, and Third District Courts of Appeal.

1

 For the 

reasons explained below, we hold that the State is not entitled to the recapture 

period discussed in Florida Rule of Criminal Procedure 3.191 where the State 

informed the defendant it had terminated its prosecutorial efforts but failed to 

notify the defendant of new and different charges based on the same conduct or 

 

1. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
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criminal episode that were filed before the speedy trial period expired. Therefore, 

we quash the Fourth District’s contrary decision in Born-Suniaga, disapprove the 

Fifth District Court of Appeal’s decision in State v. Jimenez, 44 So. 3d 1230 (Fla. 

5th DCA 2010), on which the Fourth District relied for its holding, to the extent it 

is inconsistent with this decision, and approve the First, Second, and Third 

District’s decisions in the certified conflict cases to the extent they are consistent 

with this decision.

I. BACKGROUND

The Fourth District described the facts as follows:

Following an incident on November 6, 2014, [Born-Suniaga]

was arrested the same day for misdemeanor battery in attempting to 

prevent the victim from reporting a noise complaint to law 

enforcement. [Born-Suniaga] provided his address, posted bond, and 

was released on November 7, 2014.

On February 6, 2015, ninety-two days after his arrest, the State 

filed an information charging [Born-Suniaga] with tampering with a 

witness in violation of section 914.22, Florida Statutes (2014), a 

felony, and misdemeanor battery, on the basis of the November 

incident. That same day, the State filed instructions for the Clerk to 

issue a not-in-custody capias as to both counts. On February 11, 

2015, the State asked the Broward Sheriff’s Office (“BSO”) to serve 

the capias, listing the address [Born-Suniaga] had provided upon his 

initial arrest. A detective was assigned to execute the warrant on 

March 25, 2015. There is no indication in the record that the detective 

made any effort to serve the warrant.

On April 15, 2015, the State filed a “no information” sheet on 

the original misdemeanor battery charge. [Born-Suniaga] was 

notified that the charge had been dismissed and his bond discharged.

The 175–day speedy trial period expired on April 30, 2015.

[Born-Suniaga] first became aware of the new charges on 

November 19, 2015, well over 175 days after his arrest, through his 
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co-defendant’s counsel. Upon becoming aware of the charges, [BornSuniaga] did not file a notice of expiration of speedy trial time. 

Rather, on November 25, 2015, [Born-Suniaga] moved to discharge, 

arguing that he was entitled to immediate discharge because the State 

was not allowed a fifteen-day recapture period, as it had not made any 

effort to notify him of the charges within the speedy trial period. The 

State responded, arguing that because the information was filed before 

the expiration of the 175–day period, the State was entitled to a 

recapture period. The State further argued that reasonable efforts 

were made to serve [Born-Suniaga] with the capias during the speedy 

trial period, as evidenced by its communications with BSO.

The trial court held an evidentiary hearing on the motion to 

discharge. [Born-Suniaga] was the only witness to testify. He stated 

that since his initial arrest, he had moved twice, but had updated his 

address with the U.S. Postal Service each time and had his mail 

forwarded from the original address. He did not update his address 

with the Clerk’s office. However, he did not receive any forwarded 

mail from the Clerk, much less anything suggesting that there were 

pending charges against him. Nothing in the record indicates that the 

Clerk’s office sent [Born-Suniaga] any notice when the information 

was filed in February 2015.

[Born-Suniaga] testified that he had repeatedly tried to 

determine whether the State had filed any new charges against him. 

On February 20, 2015, after his co-defendant was charged, [BornSuniaga] was informed by his attorney that there were no charges 

against him. He went to the jail later that day when his co-defendant 

turned himself in. At the jail, [Born-Suniaga] was informed by a 

deputy that there were no charges pending against him. Later that 

day, [Born-Suniaga] encountered other police officers who told him 

he was free to go and informed him that there were no warrants 

against him. In April 2015, [Born-Suniaga] looked his case up and 

saw that it was listed as having been “disposed.” Based on this, he 

was led to believe there were no charges against him.

The State presented no evidence. It did not show that anyone 

had attempted to notify [Born-Suniaga] of the charges filed. No 

clerk’s office employee testified that any mailings had been sent to 

[Born-Suniaga], and no testimony showed that BSO had made any 

attempt to serve [Born-Suniaga].

The trial court found that there was no record activity from 

[Born-Suniaga] in the case file, no notices were ever mailed to him, 
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and the file “pursuant to the clerk’s office policy was sealed.” The 

court concluded that there was no way for [Born-Suniaga] to find out 

that this case existed and no effort to alert him to the fact that charges 

stemming from the initial incident were still ongoing. . . . [T]he court 

granted [Born-Suniaga’s] motion for discharge without allowing the 

State the fifteen-day recapture period. The State timely appealed.

Born-Suniaga, 219 So. 3d at 75-77 (footnotes omitted).

On appeal, the State argued that the trial court “erred by granting [BornSuniaga’s] motion for discharge without affording the State the opportunity to try 

him within the recapture period, where the information was filed within the speedy 

trial timeframe, but [Born-Suniaga] was not served until after the expiration of that 

time.” Id. at 77. An en banc Fourth District agreed with the State, finding support 

for its conclusion in rule 3.191(p)—which provides that trial within a recapture 

period is the remedy for the State’s failure to try a defendant within the time 

specified by the speedy trial rule—and this Court’s decisions in State v. Nelson, 26 

So. 3d 570 (Fla. 2010) (reaffirming that the defendant has a right to a speedy trial, 

not the right to a speedy discharge), and State v. Naveira, 873 So. 2d 300 (Fla. 

2004) (holding the State was entitled to the recapture period where it charged the 

defendant on the last possible day under the speedy trial rule even though that 

timing precluded the defendant from being prepared to go to trial within the speedy 

trial time period). Id. at 77-80. 

In so holding, the Fourth District receded from its prior decisions “requiring 

that the defendant be notified of the charges within the speedy trial period.” Id. at 
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82. The Fourth District also certified conflict with Puzio v. State, 969 So. 2d 1197 

(Fla. 1st DCA 2007), State v. Drake, 209 So. 3d 650 (Fla. 2d DCA 2017), State v. 

McCullers, 932 So. 2d 373 (Fla. 2d DCA 2006), Cordero v. State, 686 So. 2d 737 

(Fla. 3d DCA 1997), and State v. Gantt, 688 So. 2d 1012 (Fla. 3d DCA 1997). Id. 

II. ANALYSIS

Born-Suniaga argues that the State is not entitled to the speedy trial rule’s 

recapture period when it leads the defendant to believe that it has terminated its 

prosecutorial efforts and fails to notify the defendant that new and different 

charges based on the same conduct were filed before the speedy trial period 

expired.2 We agree.

This case solely involves the application of Florida Rule of Criminal 

Procedure 3.191.3 Specifically, it relates to the default 175-day period of rule 

 

2. “[T]he interpretation of the rules of procedure with regard to the right to a 

speedy trial [is] a question of law subject to de novo review by this Court.” State 

v. Nelson, 26 So. 3d 570, 573-74 (Fla. 2010). 

3. Because the parties in this case have not argued that the Florida 

Constitution and United States Constitution should alter the application of Florida 

Rule of Criminal Procedure 3.191, we do not address the constitutional 

implications asserted by the dissent. Moreover, we quote and refer to the language 

in the various subsections of rule 3.191 to apply the rule as a whole, as written, and 

in context. The dissenting opinion focuses upon the sequence of our analysis, 

thereby missing the entirety of the applied rule.
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3.191 when a defendant facing a felony charge does not formally demand a speedy 

trial. Subdivision (a) of rule 3.191 states, in pertinent part, that

every person charged with a crime shall be brought to trial . . . within 

175 days of arrest if the crime charged is a felony. If trial is not 

commenced within these time periods, the defendant shall be entitled 

to the appropriate remedy as set forth in subdivision (p). 

Fla. R. Crim. P. 3.191(a). Subdivision (j) provides that “[i]f trial of the accused 

does not commence within the periods of time established by this rule, a pending 

motion for discharge shall be granted by the court unless it is shown that” one of 

several mentioned exceptions apply. Fla. R. Crim. P. 3.191(j). Under subdivision 

(p), the defendant’s filing of a notice of expiration of time for speedy trial triggers 

the trial court to conduct the inquiry required by subdivision (j) to determine 

whether any of the exceptions to the expiration of the speedy trial period (e.g., a 

continuance charged to the defendant) are applicable. If not, subdivision (p) 

requires that the State be given what is commonly referred to as a “recapture 

period” within which to bring the defendant to trial. Specifically, subdivision 

(p)(3) provides:

No later than 5 days from the date of the filing of a notice of 

expiration of speedy trial time, the court shall hold a hearing on the 

notice and, unless the court finds that one of the reasons set forth in 

subdivision (j) exists, shall order that the defendant be brought to trial 

within 10 days. A defendant not brought to trial within the 10-day 

period through no fault of the defendant, on motion of the defendant 

or the court, shall be forever discharged from the crime. 
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Fla. R. Crim. P. 3.191(p)(3); see also Nelson, 26 So. 3d at 576 (“[T]he recapture 

period illustrates the principle that a defendant has a right to speedy trial, not a 

right to speedy discharge without trial.”).

Importantly, however, subdivision (o) of rule 3.191 provides that “[t]he 

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.” Fla. R. 

Crim. P. 3.191(o) (emphasis added). Therefore, “[t]he rule itself expressly warns 

that the State may not circumvent the intent of the rule by appearing to drop the 

charges against a defendant, only to refile them later.” Puzio, 969 So. 2d at 1201.

This Court’s precedent confirms that the State’s charging decisions cannot 

effectively toll the running of rule 3.191’s speedy trial period. In State v. Agee, 

622 So. 2d 473, 475 (Fla. 1993), this Court analyzed the provision now codified in 

subdivision (o) of rule 3.191 and “h[e]ld 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 denying the State the recapture 

period in this situation, this Court explained that “[t]o allow the State to 

unilaterally toll the running of the speedy trial period by entering a nol pros would 
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eviscerate the rule—a prosecutor with a weak case could simply enter a nol pros 

while continuing to develop the case and then refile charges based on the same 

criminal episode months or even years later, thus effectively denying an accused 

the right to a speedy trial while the State strengthens its case.” Id.

Subsequently, in Genden v. Fuller, 648 So. 2d 1183 (Fla. 1994), this Court 

considered a case in which the State had terminated the prosecution through a “no 

action” before filing formal charges. In so doing, this Court refused to allow the 

State to “circumvent the [speedy trial] rule simply by declining to prosecute an 

arrestee before charges are filed,” concluding instead “that whether the State 

voluntarily terminates a prosecution before an information is filed, as was done [in 

the case before it], rather than after the defendant has been formally charged, as 

was done in Agee, is a distinction without a legally cognizable difference.” Id. at 

1185 (internal quotation marks omitted).

In Born-Suniaga’s case, the facts are clear that he was “led to believe there 

were no charges against him,” among other reasons, because he was “notified that 

the charge [for which he was arrested] had been dismissed and his bond 

discharged,” when in reality the State had filed new charges—before the State 

dropped the original charge—but those new charges were “sealed,” and “there was 

no way for [Born-Suniaga] to find out that [they] existed and no effort to alert him 

to the fact that charges stemming from the initial incident were still ongoing” 
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before the expiration of the speedy trial period. 219 So. 3d at 75-77. To be clear, 

Born-Suniaga was arrested for misdemeanor battery on November 6, 2014, the 

same day the conduct took place. Id. at 75. Then, on February 6, 2015, the State 

filed an information charging Born-Suniaga with witness tampering and 

misdemeanor battery based on the same November 2014 conduct. Id. “On April 

15, 2015, the State filed a ‘no information’ sheet on the original misdemeanor 

battery charge.” Id. Born-Suniaga was told that the original charge for which he 

had been arrested had been dismissed and the bond discharged. Id. at 75-76. 

However, he only “became aware of the new charges on November 19, 2015,” 

after “[t]he 175-day speedy trial period [had] expired on April 30, 2015.” Id. at 76. 

Accordingly, because the State notified Born-Suniaga that it dismissed the 

original charges and discharged his bond but failed to notify him that it in fact had 

filed new charges based on the same conduct, the trial court correctly denied the 

State the recapture period and discharged Born-Suniaga. Allowing the State to 

proceed to trial pursuant to the recapture period described in subdivision (p) would 

allow the State to avoid the effect of the speedy trial time period described in 

subdivision (a) “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,” a result that is expressly 

prohibited by subdivision (o). Fla. R. Crim. P. 3.191(o). It would also allow the 
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State to do indirectly—arrest the defendant, lead the defendant (whether 

intentionally or not) to believe it is no longer pursing the prosecution, and file new 

charges within the speedy trial period that are only revealed when the defendant 

can no longer have the speedy trial guaranteed by the rule—what the State cannot 

do directly under Agee (and Genden)—arrest the defendant, nolle prosse (or no 

action) the case, and recharge (or charge) the defendant after the speedy trial period 

expires. “The central concern is to prevent the State from avoiding the rule by 

waiting to formally charge an accused, appearing to abandon the case, and then 

resurrecting the charges later, based on the same conduct.” Puzio, 969 So. 2d at 

1201; see also McCullers, 932 So. 2d at 375-76 (“A defendant’s right to file a 

notice of expiration is similarly defeated even where charges are filed before 

expiration of the speedy trial period if the State has previously acted affirmatively 

to terminate its prosecutorial efforts but then has filed charges without rearresting 

or otherwise giving notice to the defendant before expiration of the period.”). 

Rather than construing rule 3.191 in its entirety, the Fourth District’s 

decision below improperly focused upon the remedy of the recapture period 

outlined in subdivision (p). And contrary to the Fourth District’s conclusion

otherwise, this Court’s decision in Naveira does not sanction the State avoiding the 

speedy trial rule by informing the defendant that the charges against him were 

dismissed but failing to notify him that new charges based on the same conduct 
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were filed so long as the State files the new charges within the speedy trial period. 

In Naveira, we held that the State did not violate the defendant’s right to speedy 

trial under rule 3.191 by charging the defendant on the 175th day following his 

arrest. 873 So. 2d at 302, 306-07. Our decision in Naveira focused on whether the 

timing precluded him from preparing for trial within the speedy trial time period. 

In contrast, because Born-Suniaga was “led to believe there were no charges 

against him,” Born-Suniaga, 219 So. 3d at 76, he did not have the same choice as 

Naveira—to enforce his “right to invoke the speedy trial rule and go to trial within 

ten days [or] to request a continuance because he was not prepared to go to trial in 

ten days,” Naveira, 873 So. 2d at 307-08. Accordingly, while this Court in 

Naveira rejected a “case-by-case approach to determining whether the State is 

entitled to the recapture period,” Born-Suniaga, 219 So. 3d at 81, it did so in the 

context of rejecting a “ ‘speedy charging period’ with a shifting and unknown 

deadline,” Naveira, 873 So. 2d at 310, not in the context of allowing the State to

lure the defendant into believing there is no need to file a notice of expiration of 

speedy trial because no charges are pending.

Under the circumstances in this case, the trial court correctly denied the 

State the recapture period and discharged Born-Suniaga. See Fla. R. Crim. P. 

3.191(a), (j), (o)-(p).
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III. CONCLUSION

For the reasons above, we quash the Fourth District’s decision in BornSuniaga, disapprove the Fifth District’s decision in Jimenez to the extent it is 

inconsistent with this opinion, and approve the First District’s decisions in Puzio, 

the Second District’s decisions in McCullers and Drake, and the Third District’s 

decisions in Cordero and Gantt to the extent they are consistent with this opinion.

It is so ordered.

PARIENTE, LEWIS, QUINCE, and LABARGA, JJ., concur.

LAWSON, J., dissents with an opinion, in which CANADY, C.J., concurs.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, 

IF FILED, DETERMINED.

LAWSON, J., dissenting.

I would read Florida Rule of Criminal Procedure 3.191 as it is written and 

thereby alleviate the constitutional concerns inherent in the majority’s misreading 

of this rule of procedure, commonly referred to as the “speedy trial rule.” Because 

this was the approach taken by Fourth District Court of Appeal, I would approve 

that court’s well-reasoned, unanimous en banc opinion. Therefore, I dissent. 

BACKGROUND

On November 6, 2014, Born-Suniaga was arrested on a charge of 

misdemeanor battery for an incident that had occurred that day. State v. BornSuniaga, 219 So. 3d 74, 75 (Fla. 4th DCA 2017). He posted bond and was 
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released the next day. Id. Ninety-two days after his arrest, the State filed an 

information charging Born-Suniaga with both witness tampering, a third-degree 

felony, and misdemeanor battery, based upon the November 6 incident. Id. The 

State immediately requested a capias and, a few days later, asked the Broward 

County Sheriff’s Office to serve the capias on Born-Suniaga. Id. Thereafter, the 

State also filed a “no information” sheet as to the original battery charge, causing 

the original bond to be discharged—such that Born-Suniaga’s liberty was no 

longer restricted in any way as a result of the initial arrest. Id. at 75-76. For 

reasons not explained in the record, the information was filed or treated by the 

Clerk of Court as “sealed” and was not timely served by the Sheriff. Id. at 76. 

Born-Suniaga was alerted to the charges by a co-defendant’s counsel on November 

19, 2015—a little more than one year after his initial arrest on the battery charge. 

Id.

ANALYSIS

I. Florida’s Speedy Trial Rule

A. What the Rule Plainly Says.

Florida Rule of Criminal Procedure 3.191, the “speedy trial rule,” provides 

that a defendant who is not brought to trial within 175 days of his or her arrest (on 

a felony charge and on any misdemeanor charged with a felony) may file a notice 

of expiration of the 175-day “speedy trial period,” giving the State a very short 
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window of time—a “recapture period” of about two weeks—during which to try 

the defendant or have the charges permanently dismissed. See Fla. R. Crim. P. 

3.191(a), (p). 

The majority begins its analysis by accurately quoting subdivision (a) of the 

rule, which states in pertinent part that 

every person charged with a crime shall be brought to trial . . . within 

175 days of arrest if the crime charged is a felony. If trial is not 

commenced within these time periods, the defendant shall be entitled 

to the appropriate remedy as set forth in subdivision (p). 

Fla. R. Crim. P. 3.191(a) (emphasis added). Oddly, the majority then skips 

subdivision (p), the very subdivision to which subdivision (a) directs the reader for 

the “appropriate remedy” available to a defendant who is not brought to trial 

“within 175 days of arrest.” Subdivision (p), the “remedy” provision skipped in 

the majority’s analysis, provides in its entirety: 

(p) Remedy for Failure to Try Defendant within the Specified 

Time.

(1) No remedy shall be granted to any defendant under this rule 

until the court has made the required inquiry under subdivision (j).

(2) At any time after the expiration of the prescribed time period, 

the defendant may file a separate pleading entitled “Notice of 

Expiration of Speedy Trial Time,” and serve a copy on the 

prosecuting authority.

(3) No later than 5 days from the date of the filing of a notice of 

expiration of speedy trial time, the court shall hold a hearing on the 

notice and, unless the court finds that one of the reasons set forth in 

subdivision (j) exists, shall order that the defendant be brought to trial 
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within 10 days. A defendant not brought to trial within the 10-day 

period through no fault of the defendant, on motion of the defendant 

or the court, shall be forever discharged from the crime.

Fla. R. Crim. P. 3.191(p).

As seen above, the remedy unambiguously set forth in the speedy trial rule 

for a defendant not brought to trial within 175 days after arrest is three-fold. First, 

the defendant is entitled to file and serve a notice of expiration of speedy trial. Fla. 

R. Crim. P. 3.191(p)(2). Second, this filing triggers a short time window during 

which the State is required to present its evidence at trial. Fla. R. Crim. P. 

3.191(p)(3). Third, if the State cannot bring the defendant to trial within the 

recapture period, the defendant is to be “forever discharged from the crime.” Id. 

Immediate discharge without a recapture period is not included as an “appropriate 

remedy.” See id. Additionally, subdivision (p) directs that the defendant is not 

entitled to the remedies set forth in subdivision (p) “until the court has made the 

required inquiry under subdivision (j).” Fla. R. Crim. P. 3.191(p)(1). Subdivision 

(j) provides:

(j) Delay and Continuances; Effect on Motion. If trial of the 

accused does not commence within the periods of time established by 

this rule, a pending motion for discharge shall be granted by the court 

unless it is shown that:

(1) a time extension has been ordered under subdivision (i) and 

that extension has not expired;

(2) the failure to hold trial is attributable to the accused, a 

codefendant in the same trial, or their counsel;
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(3) the accused was unavailable for trial under subdivision (k); or

(4) the demand referred to in subdivision (g) is invalid.

If the court finds that discharge is not appropriate for reasons under 

subdivisions (j)(2), (3), or (4), the pending motion for discharge shall 

be denied, provided, however, that trial shall be scheduled and 

commence within 90 days of a written or recorded order of denial.

Fla. R. Crim. P. 3.191(j).

The three subdivisions quoted above—(a), (p), and (j)—in that order (as 

expressly directed in the rule), encompass the basic mechanism for application of 

the speedy trial rule in a case where the time for bringing the defendant to trial has 

expired—there is no provision authorizing a different remedy under special 

circumstances; there is only the remedy authorized by subdivision (p).

As explained above, the majority opinion evades this conclusion by skipping 

subdivision (p)—the sole “remedy” provision in the rule—and quoting subdivision 

(j) out of context, making it sound as if the rule authorizes discharge without a 

recapture period when it does not. Majority op. at 6. The majority writes:

Subdivision (a) of rule 3.191 states, in pertinent part, that 

every person charged with a crime shall be brought to 

trial . . . within 175 days of arrest if the crime charged is 

a felony. If trial is not commenced within these time 

periods, the defendant shall be entitled to the appropriate 

remedy as set forth in subdivision (p). 

Fla. R. Crim. P. 3.191(a). Subdivision (j) provides that “[i]f trial of 

the accused does not commence within the periods of time established 
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by this rule, a pending motion for discharge shall be granted by the 

court unless it is shown that” one of several mentioned exceptions 

apply. Fla. R. Crim. P. 3.191(j). 

Majority op. at 6 (emphasis added). By skipping subdivision (p) and quoting 

subdivision (j) immediately after subdivision (a), an uninformed reader could be 

left with the misimpression that the rule provides for discharge without a recapture 

period whenever a case does not proceed to trial within 175 days after arrest. But, 

when these expressly interlinked subdivisions are read in the sequence expressly 

directed in the rule itself (in other words, as plainly written), it is clear that the rule 

provides for permanent discharge only when a “defendant [is] not brought to trial 

within the 10-day [recapture] period through no fault of the defendant, on motion 

of the defendant,” Fla. R. Crim. P. 3.191(p)(3), and then only after “the court has 

made the required inquiry under subdivision (j).” Fla. R. Crim. P. 3.191(p)(1).

B. Application of the Speedy Trial Rule, as Written, in this Case.

Applying the rule as it is written would have allowed Born-Suniaga to

secure a trial within two weeks of the day he first learned of the charges pending 

against him—charges that were filed within 175 days of his initial arrest as 

required by State v. Agee, 622 So. 2d 473, 475 (Fla. 1993).4 This is, after all, the 

 

4. For reasons explained below, I disagree with the limitation that our 

precedent, in decisions such as Agee, places on the State’s ability to charge a 

defendant after 175 days from the defendant’s initial arrest. In any event, this 
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speedy trial rule, not the speedy discharge rule. And, that opportunity for a speedy 

trial is what the express terms of the rule unambiguously provide a defendant and 

the State. Ironically, over thirty years ago we specifically removed, as antithetical 

to the rule’s purpose, the very remedy of immediate discharge that the majority 

writes back in with its anti-textual “interpretation.” See Fla. R. Crim. P. 3.191 

committee notes (1984); see also State v. Nelson, 26 So. 3d 570, 576 (Fla. 2010) 

(“The creation of the recapture period emphasizes the purpose of the rule—‘to 

promote the efficient operation of the court system and to act as a stimulus to 

prosecutors to bring defendants to trial as soon as practicable, thus minimizing the 

hardships placed upon accused persons awaiting trial.’ In other words, the 

recapture period illustrates the principle that a defendant has a right to speedy trial, 

not a right to speedy discharge without trial.”) (citation omitted) (quoting Lewis v. 

State, 357 So. 2d 725, 727 (Fla. 1978)).

The rule itself is clear and unambiguous and does not authorize discharge 

without a recapture period under any circumstances.

C. Born-Suniaga’s Argument and the Majority’s Misreading of the 

Rule.

 

precedent does not apply to the facts of this case because the State charged BornSuniaga within 175 days of his initial arrest.
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Contrary to the plain language of the speedy trial rule, Born-Suniaga sought 

immediate discharge on the theory that the court should ignore the actual rule 

altogether and instead apply the unwritten, different, and contrary rule applied by 

the First, Second, and Third District Courts of Appeal that, in his view, better 

captures the “spirit” of the written rule he asks us to contravene. See, e.g., Puzio v. 

State, 969 So. 2d 1197, 1201 (Fla. 1st DCA 2007) (opining that providing the State 

a recapture period in cases where the defendant was unaware of charges until after 

expiration of the speedy trial period would be “contrary to the spirit of the speedy 

trial rule”). 

The majority sides with Born-Suniaga, not because it agrees that the “spirit” 

of the speedy trial rule justifies immediate discharge but because it reads 

subdivision (o) as negating subdivisions (a), (p) and (j)—which provide for the 

recapture period. Subdivision (o) reads:

(o) Nolle Prosequi; Effect. 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. 

Fla. R. Crim. P. 3.191(o).

At first reading, and standing alone, the practical application of this 

subdivision is not readily apparent. But when considered in context, this 
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subdivision makes sense. The key is first understanding the “intent and effect” of 

the rule, which is clear from the unambiguous language of the core provisions for 

remedying a speedy trial violation quoted above: subdivisions (a), (p) and (j). The 

unambiguous intent and effect of these core provisions is to give a defendant 

whose liberty interests are impaired by pending charges an opportunity to secure a 

“speedy” resolution of those charges by securing a “speedy trial”—while also 

protecting the interests of the State and victims of crime by providing a reasonable 

opportunity for a trial before a case is permanently discharged. In theory, the State 

could avoid this “intent and effect” if, after the defendant filed a proper notice of 

expiration and during the recapture period, the State were permitted to nolle pros 

the charges and thereby avoid permanent discharge by the court. Rather than 

reading subdivision (o) as negating the unambiguous core provisions of the rule, 

subdivision (o) should be read in harmony with the rest of the rule as preventing 

the State from avoiding the ultimate remedy of discharge in those cases where it 

cannot bring the defendant to trial during the recapture period. 

Reading the rule in this manner would better reflect the constitutional speedy 

trial right that this procedural rule is designed to effect and, more importantly, 

would avoid the separation of powers entanglement that occurs when the judiciary 

unjustifiably interferes with substantive law or executive discretion under the guise 

of procedural rulemaking. See generally Boyd v. Becker, 627 So. 2d 481, 484 (Fla. 
- 21 -

1993) (explaining that this Court’s rulemaking authority “is limited to rules 

governing procedural matters and does not extend to substantive rights” such as 

“statutes of limitation [that] supersede [this Court’s] procedural rules”). In 

summary, defining what constitutes a crime, the appropriate punishment (or range 

of punishments) for those crimes, and the time limit within which the executive 

must file charges and notify an accused of those charges are substantive law issues 

properly determined by the Legislature. Deciding whether or when to file charges 

within the time frame established by the Legislature is an executive function. 

Because these are legislative and executive functions, the judiciary should not 

interfere with them by creating a different time-based deadline unless there is a 

valid legal justification for its action. 

For example, rule 3.191 is designed to provide a procedure to protect the 

constitutional speedy trial right guaranteed by the Sixth Amendment. If shortening 

the time within which a prosecutor must notify an accused of pending charges were 

necessary to protect the speedy trial right, the judiciary would have a legal basis for 

doing so. As I will demonstrate below, however, neither the speedy trial right nor 

any other legal basis exists to justify judicial interference with substantive law or 

executive discretion in this area. That is why I agree with other justices who have 

concluded that this Court’s interpretation and application of rule 3.191 

unjustifiably interferes with substantive law and executive discretion in a manner 
- 22 -

that raises significant constitutional concerns. See, e.g., Bulgin v. State, 912 So. 2d 

307, 313 (Fla. 2005) (Bell, J., concurring in result only) (“The precedent of this 

Court constrains me to concur with the majority. However, . . . I too believe that 

we have applied (and now rewritten) a judicially created rule of procedure in a 

manner that unnecessarily constricts the applicable statute of limitations.”); id. at 

314 (Wells, J., dissenting) (“I dissent because the majority applies a judicial rule of 

procedure in a manner that eviscerates the statute of limitations enacted by the 

Legislature. The majority’s decision adds to a line of precedents from this Court 

that has created and continually expanded a substantive right which has no basis in 

the original language of the rule itself or in Florida’s statutes and is not mandated 

by the State or Federal Constitutions.”); Reed v. State, 649 So. 2d 227, 230 (Fla. 

1995) (Wells, J., dissenting) (“I am concerned that this decision is another 

substantial evisceration of the statutes of limitation in criminal-law prosecutions. 

This decision goes even further than Genden v. Fuller, 648 So. 2d 1183 (Fla. 

1994).”); id. at 229-30 (Shaw, J., dissenting) (“I dissent for the same reasons I 

joined Justice Wells’ dissents in [Genden] and Farina v. Perez, 647 So. 2d 113 

(Fla. 1994). It seems that [Agee] has taken on a Frankenstein-like role I never 

envisioned or intended when I authored that opinion.”); id. at 229 (Overton, J., 

dissenting) (“I agree fully with Justice Wells’ dissent. I write to express my belief 

that the majority has now crossed the line and made our speedy trial rule 
- 23 -

substantive rather than procedural by this construction and that, consequently, it is 

unconstitutional.”); Genden, 648 So. 2d at 1186 (Wells, J., dissenting) (joined by 

Overton and Shaw, JJ.) (“I emphasize that here we are dealing with a rule of court 

procedure. This rule should not be applied so broadly that it eviscerates the statute 

of limitations set by the [L]egislature.”). These concerns arise because the 

majority’s misreading of the rule does not account for any of the applicable 

constitutional concerns.

II. Constitutional Provisions that Should Guide Our Interpretation and 

Application of the Speedy Trial Rule.

A. Article III, Section 1, Florida Constitution. 

Under our Constitution, the power to enact substantive laws is granted 

exclusively to the Florida Legislature. See art. III, § 1, Fla. Const.; see also

Benyard v. Wainwright, 322 So. 2d 473, 475 (Fla. 1975). Section 914.22, Florida 

Statutes (2014), creates the crime of tampering with a witness, making it a thirddegree felony when, as here, it “involves the investigation or prosecution of a 

misdemeanor,” and section 775.15(2)(b), Florida Statutes (2014), grants the State 

three years from the offense date within which to file third-degree felony charges 

on the offense. There are some exceptions and nuances, but, in general, if the State 

fails to file charges on a third-degree felony within three years after the crime is 

committed, the State will be forever barred from charging or trying the accused, as 

a matter of substantive law. Substantive law also requires timely notice of the filed 
- 24 -

charges to a defendant. This is accomplished by section 775.15(4)(b), which 

provides that the filing of an information only satisfies this substantive, statutory 

time limitation if the “capias, summons, or other process issued on such indictment 

or information is executed without unreasonable delay.” Applying these 

provisions to this case shows that the State had until November 6, 2017, within 

which to file an information charging the crime and was also granted a 

“reasonable” amount of time thereafter within which to notify Born-Suniaga of the 

charge, before the trial could be barred based upon the passage of time. The State 

acted well within these substantive deadlines. 

Under the majority’s interpretation of rule 3.191, the time frame within 

which the State had to notify the defendant of the charges against him was 

shortened from more than three years (the three-year statute of limitations plus the 

reasonable period thereafter within which to give notice), as provided by general 

law, to less than six months (175 days with no additional time within which to give 

notice), as provided by the majority—radically truncating the statute of limitations 

and notice provisions enacted by the Legislature. For the judiciary to truncate the 

legislatively enacted statute of limitations and notice provision from more than 

three years to less than six months without raising constitutional concerns, there 

should be a constitutional basis for our action. See Boyd, 627 So. 2d at 484. The 

authority to promulgate procedural rules, standing alone, necessarily cannot 
- 25 -

authorize us to trump the Legislature’s substantive-law decision that the State is to 

be granted three years in which to file a charge of tampering with a witness (and a 

reasonable time thereafter in which to notify the defendant of the charge). See id.

I will address each of those possible sources of authority, in turn, and 

explain why none of them supplies a reasoned justification for the judiciary to 

shorten the statute of limitations under the guise of procedural rulemaking.

B. Due Process Clause, Fourteenth Amendment, United States 

Constitution.

The Fourteenth Amendment Due Process Clause protects against an 

oppressive delay between the commission of a crime and the arrest of the accused 

or filing of an information or indictment. See United States v. Lovasco, 431 U.S. 

783, 789 (1977). If a truncated statute of limitations (and notice period) were 

necessary to protect the due process rights of those arrested for criminal conduct,

the Due Process Clause could justify a procedural rule shortening the time frame 

for notice from over three years to 175 days after arrest—as the majority has held. 

However, the United States Supreme Court has made clear that separation of 

powers concerns dictate deference to the legislative and executive branches of 

government, in most cases, when it comes to the time taken to prosecute a case. 

Id. 

With respect to the legislative branch, the Supreme Court has held that 

“statutes of limitations . . . provide ‘the primary guarantee against bringing overly 
- 26 -

stale criminal charges.’ ” Id. (quoting United States v. Marion, 404 U.S. 307, 322 

(1971)). With respect to the executive branch, the Supreme Court explained: 

[P]rosecutors do not deviate from “fundamental conceptions of 

justice” when they defer seeking indictments until they have probable 

cause to believe an accused is guilty; indeed it is unprofessional 

conduct for a prosecutor to recommend an indictment on less than 

probable cause. It should be equally obvious that prosecutors are 

under no duty to file charges as soon as probable cause exists but 

before they are satisfied they will be able to establish the suspect’s 

guilt beyond a reasonable doubt. To impose such a duty “would have 

a deleterious effect both upon the rights of the accused and upon the 

ability of society to protect itself.” United States v. Ewell[, 383 U.S. 

116, 120 (1966)]. From the perspective of potential defendants, 

requiring prosecutions to commence when probable cause is 

established is undesirable because it would increase the likelihood of 

unwarranted charges being filed, and would add to the time during 

which defendants stand accused but untried. These costs are by no 

means insubstantial since, as we recognized in Marion, a formal 

accusation may “interfere with the defendant’s liberty, . . . disrupt his 

employment, drain his financial resources, curtail his associations, 

subject him to public obloquy, and create anxiety in him, his family 

and his friends.” 404 U.S. [at 320]. From the perspective of law 

enforcement officials, a requirement of immediate prosecution upon 

probable cause is equally unacceptable because it could make 

obtaining proof of guilt beyond a reasonable doubt impossible by 

causing potentially fruitful sources of information to evaporate before 

they are fully exploited. And from the standpoint of the courts, such a 

requirement is unwise because it would cause scarce resources to be 

consumed on cases that prove to be insubstantial, or that involve only 

some of the responsible parties or some of the criminal acts. Thus, no 

one’s interests would be well served by compelling prosecutors to 

initiate prosecutions as soon as they are legally entitled to do so.

Lovasco, 431 U.S. at 790-92 (footnotes omitted) (emphasis added); see also id. at 

792 (concluding that adopting the rule that “once the Government has assembled 

sufficient evidence to prove guilt beyond a reasonable doubt, it should be 
- 27 -

constitutionally required to file charges promptly, even if its investigation of the 

entire criminal transaction is not complete . . . would have many of the same 

consequences as adopting a rule requiring immediate prosecution upon probable 

cause”). 

For the reasons explained in Lovasco, the Due Process Clause cannot justify 

this Court’s shortened 175-day time-frame for notifying Born-Suniaga of his 

witness-tampering charge. See id. Rather, a prosecutor should be able to file a “no 

information” after an arrest, as was done here, and should then have the amount of 

time granted by the Legislature, in substantive law, to file charges. Id. At that 

point, a defendant would need to show substantial and “actual prejudice” before a 

Due Process Clause excessive-delay claim would ripen. Id. at 789-90. In Lovasco, 

for example, the defendant testified that two material witnesses had died before the 

government filed charges against him. Id. at 785-86. Even then, prejudice from 

the government’s “lengthy preindictment delay,” standing alone, did not justify the 

dismissal of charges with prejudice, id. at 788-89, the remedy that this Court 

authorized in this case with no showing of prejudice. 

As seen in the passages quoted from Lovasco, it is not simply that the Due 

Process Clause cannot justify a judicial shortening of the legislatively enacted 

statute of limitations; rather, the United States Supreme Court has condemned any 

attempt by the judiciary to interfere with the authority granted to the legislative and 
- 28 -

executive branches in this area as having “a deleterious effect both upon the rights 

of the accused and upon the ability of society to protect itself,” id. at 791 (quoting 

Ewell, 383 U.S. at 120), and as being “unwise,” id. at 792.

C. Speedy Trial Clause, Sixth Amendment, United States Constitution.

The Sixth Amendment Speedy Trial Clause protects against unreasonable 

delay in bringing a defendant to trial after his or her arrest or the filing of a 

charging document. United States v. MacDonald, 456 U.S. 1, 6-7 (1982). As with 

the Due Process Clause, a defendant must establish prejudice as a result of delay 

before there can be any consideration of dismissing charges under the Sixth 

Amendment Speedy Trial Clause. See Barker v. Wingo, 407 U.S. 514, 530 (1972). 

Again, because Born-Suniaga has not attempted to establish prejudice based upon 

delay in this case, he has no basis for even suggesting—and, indeed, he does not 

suggest—that the Sixth Amendment speedy trial right could justify dismissal of the 

charges in this case. 

More importantly, the Sixth Amendment Speedy Trial Clause is “not 

primarily intended to prevent prejudice to the defense caused by passage of time.” 

MacDonald, 456 U.S. at 8. Rather, it is primarily “designed to minimize the 

possibility of lengthy incarceration prior to trial, to reduce the lesser, but 

nevertheless substantial, impairment of liberty imposed on an accused while 
- 29 -

released on bail, and to shorten the disruption of life caused by arrest and the 

presence of unresolved criminal charges.” Id. For this reason:

Once charges are dismissed, the speedy trial guarantee is no 

longer applicable. At that point, the formerly accused is, at most, in 

the same position as any other subject of a criminal investigation. 

Certainly the knowledge of an ongoing criminal investigation will 

cause stress, discomfort, and perhaps a certain disruption in normal 

life. This is true whether or not charges have been filed and then 

dismissed. This was true in Marion, where the defendants had been 

subjected to a lengthy investigation which received considerable press 

attention. But with no charges outstanding, personal liberty is 

certainly not impaired to the same degree as it is after arrest while 

charges are pending. After the charges against him have been 

dismissed, “a citizen suffers no restraints on his liberty and is [no 

longer] the subject of public accusation: his situation does not 

compare with that of a defendant who has been arrested and held to 

answer.” [Marion, 404 U.S. at 321]. Following dismissal of charges, 

any restraint on liberty, disruption of employment, strain on financial 

resources, and exposure to public obloquy, stress and anxiety is no 

greater than it is upon anyone openly subject to a criminal 

investigation.

Id. at 8-9 (footnotes omitted) (emphasis added).

Clearly, Born-Suniaga had no substantive claim for dismissal under the 

Sixth Amendment Speedy Trial Clause based upon the State’s decision to file a 

“no information” as to the battery charge, because that act meant that the 

constitutional speedy trial guarantee was “no longer applicable.” Id. at 8. Nor did 

the State’s decision to file an information charging a felony, along with the 

misdemeanor battery, in any way violate the speedy trial right. See id. at 8-9. 
- 30 -

For these reasons, the Sixth Amendment Speedy Trial Clause cannot justify 

this Court’s creation of an alternative substantive deadline, based solely upon the 

passage of time, within which the State must file charges and give notice of those 

charges to a defendant. And, again, it is not just that the Speedy Trial Clause 

cannot justify a judicial shortening of the legislatively enacted statute of 

limitations; rather, when one understands the speedy trial right it becomes apparent 

that Florida’s speedy trial rule, as written, protects that right without requiring 

permanent discharge for failure to file charges and give notice within 175 days of 

arrest. 

For example, consider a defendant arrested by police at or near the scene of 

a crime based upon a probable cause finding, as occurred here. Rule 3.191, as 

written, would require prosecutors to assess the case and either (1) file charges 

within 175 days if the State believed it could meet its burden of proof or (2) file a 

“no information” within 175 days if the State needed additional time for 

investigation. 

What the majority does not seem to appreciate is that the filing of a “no 

information” within 175 days completely eliminates any constitutional speedy trial 

right issue. Id. at 8 (“Once charges are dismissed, the speedy trial guarantee is no 

longer applicable.”). Then, if the State could gather the necessary evidence prior 

to the running of the statute of limitations, it could refile charges with no 
- 31 -

constitutional speedy trial impediment. See id. at 8-9. As written, rule 3.191 

would also protect the speedy trial right in the event of charges filed (or re-filed) 

after 175 days because the remedy provision would allow the defendant to 

immediately file a notice of expiration as soon as he or she is notified of the 

charges. Fla. R. Crim. P. 3.191(p)(2). By doing so, the defendant could then force 

the State to trial within two weeks—while facing the threat of permanent dismissal 

of the charges if the State cannot proceed in that time frame. Because subdivision 

(o), as read in harmony with the rest of the rule, does not allow the State to avoid 

permanent discharge by filing a nolle pros during the recapture period, the State 

could not risk filing charges more than 175 days after arrest unless it had 

marshalled the evidence it believed sufficient to prove the charges beyond a 

reasonable doubt. 

D. Article V, Section 1, Florida Constitution.

“The judicial power shall be vested in a supreme court, district courts of 

appeal, circuit courts and county courts.” Art. V, § 1, Fla. Const. As a necessary 

corollary to their judicial power, courts have inherent authority to dismiss a case as 

the ultimate sanction for extreme misconduct. See Rose v. Palm Beach County, 

361 So. 2d 135, 138 (Fla. 1978) (“Every court has inherent power to do all things 

that are reasonably necessary for the administration of justice within the scope of 

its jurisdiction, subject to valid existing laws and constitutional provisions.”); State 
- 32 -

v. Williams, 623 So. 2d 462, 467 (Fla. 1993) (“[T]he only appropriate remedy to 

deter [the] outrageous law enforcement conduct [of illegally manufacturing the 

drugs sold to the defendant during a reverse-sting operation] is to bar the 

defendant’s prosecution.”). That power is generally unrelated to the passage of 

time, or delay, but generally also requires specific findings not present here that the 

State has violated a constitutional right of the accused. See, e.g., id. at 463 (“[T]he 

illegal manufacture of crack cocaine by law enforcement officials for use in a 

reverse-sting operation . . . constitutes governmental misconduct which violates the 

due process clause of the Florida Constitution.”). 

The majority cannot justify its summary-dismissal-with-prejudice procedure 

based upon the inherent authority of the judiciary because neither the State’s 

voluntary dismissal of a case nor the filing of new charges based upon the same 

criminal conduct, within the statute of limitations period, violates any 

constitutional right of the accused—and cannot be classified as misconduct. 

MacDonald, 456 U.S. at 8-9; Lovasco, 431 U.S. at 790-95, 793-95. 

In this case, for example, there is no evidence of misconduct associated with 

sealing the record of Born-Suniaga’s new charges. Although the Florida Rules of 

Criminal Procedure did not require the clerk to seal the record, see Born-Suniaga, 

219 So. 3d at 76 n.2, the allegations of witness tampering and battery in BornSuniaga’s case underscore that there were good policy reasons for doing so, 
- 33 -

including the safety of the officers executing the warrant and the safety of the 

victim, whom Born-Suniaga allegedly battered in an attempt to prevent the victim 

“from reporting a noise complaint to law enforcement.” Id. at 75. 

E. Article V, Section 2, Florida Constitution. 

Article V, section 2 of the Florida Constitution authorizes this Court to 

“adopt rules for the practice and procedure in all courts.” Procedural rules provide 

order to the justice system and are primarily judged by two standards. 

First, it is axiomatic that procedural rules should be written in a manner that 

assures procedural due process to all parties. See Pressley v. Wainwright, 367 So. 

2d 222, 223 n.10 (Fla. 1979) (England, C.J., dissenting) (“It is, of course, selfevident that our appellate rules provide procedural due process . . . .”); see also 

State v. Diaz de la Portilla, 177 So. 3d 965, 968 (Fla. 2015) (recognizing that the 

procedural rules governing indirect criminal contempt reflect the required 

“procedural due process safeguards”) (citation omitted). 

Although the “guarantee of due process, viewed in its procedural aspect, 

requires no particular form of procedure . . . [d]ue process [does] require[] . . . that 

certain safeguards exist in whatever procedural form it is afforded.” 16B Am. Jur. 

2d Constitutional Law § 961 (2009) (footnotes omitted). The essential elements of 

these constitutionally required procedural safeguards are “reasonable notice” and 

“a fair opportunity to be heard before the issues are decided.” Id. 
- 34 -

Given that the raison d’être of procedural rules is to provide procedural due 

process to all parties, the irony of using case law to judicially rewrite a procedural

rule so that it sanctions a party who followed the letter of the rule—and did no 

wrong—by throwing out its case with prejudice, is rich. 

Born-Suniaga did not have a procedural “right” to discharge without 

affording the State a recapture period because that is not the remedy set forth in 

rule 3.191. That is the way procedural rights have to be created and applied—by 

the letter of the rule—because reading a procedural rule differently than it is 

plainly written, to the benefit of one party and the detriment of another, is contrary 

to the Due Process Clause. 

Second, as already discussed, it is axiomatic that the judicial branch cannot 

create or abridge substantive law under the guise of procedural rulemaking because 

doing so would violate the separation of powers doctrine. See generally Boyd, 627 

So. 2d at 484 (explaining that this Court’s rulemaking authority “is limited to rules 

governing procedural matters and does not extend to substantive rights” such as 

“statutes of limitation [that] supersede [this Court’s] procedural rules”). But that is 

exactly what this Court did in Agee and does again today by extending Agee to 

require summary dismissal with prejudice in this case, even though the State filed 

its information and gave notice to Born-Sunaiga well within the time periods 

required by substantive law. 
- 35 -

In essence, this Court has taken an arbitrary procedural time frame designed 

to trigger a specific procedural “remedy” (aimed at providing an orderly 

mechanism for protecting the constitutional speedy trial rights of an accused, 

consistent with due process for all parties) and elevated that arbitrary procedural 

time frame into a substantive right pursuant to which the State must file charges 

and give notice of those charges within 175 days after arrest in all cases—thereby 

truncating and trumping the statute of limitations and notice deadlines created by 

the Legislature. 

Even setting aside separation of powers concerns, consider how this Court’s 

prior dubious interpretation of our speedy trial rule could thwart “the ability of 

society to protect itself” in a hypothetical murder case. Lovasco, 431 U.S. at 791 

(quoting Ewell, 383 U.S. at 120). It is not hard to imagine a first-degree murder 

case in which two suspects are arrested based upon conclusive evidence that 

they—and no one else—were with the victim in her house when she was murdered 

using a knife (or knives), with multiple stab wounds inflicted. As soon as the two 

are identified, police secure a warrant and arrest them for the murder. Of course, 

even conclusive circumstantial evidence that at least one of the suspects had to 

have murdered the victim would be insufficient to convict either of them. See 

generally State v. Reddick, 568 So. 2d 902, 903 n.2 (Fla. 1990) (recognizing the 

State’s burden to prove that “the defendant caused the [victim’s] death” as one of 
- 36 -

the three elements of first-degree murder). If investigators were unable to locate 

evidence sufficient to prove beyond a reasonable doubt which one of the 

defendants committed the murder (or that both were involved) as the 175-day 

speedy trial deadline approached, the prosecutor would have to file a “no 

information,” and both suspects would be released without condition—satisfying 

all protections afforded by the Speedy Trial Clause. MacDonald, 456 U.S. at 8-9. 

However, Agee would prevent further prosecution even if, a few days later, one of 

the suspects confessed and turned over a video showing both repeatedly stabbing 

the defendant with similar knives. Although the “no information” would have 

protected the killers’ constitutional speedy trial rights without permanent discharge 

(applying rule 3.191 as written), this Court’s precedent would forever thwart the 

State’s ability to punish the killers and protect society from two violent criminals 

because it misinterprets the rule as creating a substantive 175-day time bar to 

prosecution—contrary to the Legislature’s determination that “prosecution for a 

capital felony, a life felony, or a felony that resulted in a death may be commenced 

at any time.” § 775.15(1). 

There is no way to know how many times this Court’s misinterpretation of 

rule 3.191 has resulted in discharge without trial or acted to bar further prosecution 

in cases dropped by the State where evidence was later secured that would have 

otherwise allowed prosecution within the statute of limitations period. However, it 
- 37 -

is clear from this Court’s opinions, and from other appellate decisions applying this 

Court’s precedent, that the 175-day period has been used as a substantive, 

permanent bar to prosecution, and without affording the State a recapture period, in 

cases involving charges of theft,5assault,6 drug trafficking,7armed robbery,8sex 

crimes against children,9and murder.10 

CONCLUSION

Rule 3.191, as written, protects the defendant’s substantive Sixth 

Amendment speedy trial guarantee. I would read and apply the rule as written, 

approve the Fourth District’s decision, and avoid the constitutional concerns 

inherent in the majority’s contrary decision. If there is a constitutional basis for 

this Court to interfere with the legislative branch’s policy decision as reflected in 

our statutes of limitation, or to interfere with the executive branch’s role in 

 

5. Genden v. Fuller, 648 So. 2d 1183 (Fla. 1994); Pearson v. State, 18 So. 

3d 645 (Fla. 1st DCA 2009); State v. Hurley, 760 So. 2d 1127 (Fla. 4th DCA 

2000). 

6. Williams v. State, 946 So. 2d 1163 (Fla. 1st DCA 2006); Von Waldner v. 

State, 860 So. 2d 1061 (Fla. 5th DCA 2003). 

7. Griggs v. State, 994 So. 2d 1198 (Fla. 5th DCA 2008).

8. Reed v. State, 649 So. 2d 227 (Fla. 1995); Trainer v. Broome, 666 So. 2d 

1019 (Fla. 4th DCA 1996).

9. Hernandez v. State, 513 So. 2d 155 (Fla. 2d DCA 1987).

10. Butler v. State, 84 So. 3d 419 (Fla. 5th DCA 2012); Walden v. State, 

979 So. 2d 1206 (Fla. 4th DCA 2008).
- 38 -

enforcing the law within the substantive framework set forth by the Legislature, I 

cannot find it.

CANADY, C.J., concurs.

Application for Review of the Decision of the District Court of Appeal – Certified 

Direct Conflict of Decisions 

Fourth District - Case No. 4D15-4853

(Broward County)

A. Randall Haas, Fort Lauderdale, Florida,

for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Celia Terenzio, Bureau 

Chief, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach, 

Florida,

for Respondent