D ISTRICT C OURT O F A PPEAL O F T HE S TATE O F F LORIDA

F OURTH D ISTRICT

DONALD BUHLER
, Petitioner

,

v.

STATE OF FLORIDA
, Respondent

.

No. 4D 17

- 3324

[ May 16, 2018 ]

Petition for writ of prohibition to the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County ; Samantha Schosberg Feuer , Judge;

L.T. Case No. 502016CF007497A

.

Scott Berry of Scott Berry Law, P.A., West Palm Beach, for petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for respondent.

G ERBER
, C.J

.

The defendant petitions for a writ of prohibition

, following the circuit court’s order denying the defendant’s motion for discharge based on an alleged violation of the speedy trial rule , Florida Rule of Criminal Procedure

3.191. The circuit court reasoned that, following this court’s disposition

of the state’s certiorari challenge to a pretrial evidentiary order

, the circuit

court had ninety days to bring the defendant to trial under rule s 3.191 (i)(4)

and (m)

. The defendant a rgues that the court’s ruling to extend speedy trial for ninety days followi ng this court’s d isposition was erroneous

because rule 3.191 (m) did not apply. Case law from our supreme court,

th is court, and our sister courts have rejected such an argument. Therefore, w e den y the defendant’s petition.

Procedural History

On April 26, 2017, t he defendant filed and served a demand for speedy

tri al pursuant to rule 3.191(b) (“ (1) Except as otherwise provided by this rule,

. . . every person charged with a crime by indictment or information shall have the right to demand a trial within 60 days, by filing with the2 court a separate pleading entitled ‘ Dem and for Speedy Trial,’ and serving a copy on the prosecuting authority. . . . (4) If the defendant has not been brought to trial within 50 days of the filing of the demand, the defendant shall have the right to the appropriate remedy as set forth in su bdivision (p). ”). R ule 3 .191(b) would have required trial by June 15, 2017, not including the recapture period specified in rule 3.191(p) (3)

. The court set the defendant’s case for trial on June 5, 2017.

On June 2, 2017, t he circuit court entered an ord er sustaining the defendant’s objection to the state’s notice of intent to offer evidence under section 90.404(2), Florida Statutes (2016).

On June 5, 2017, the day set for trial , t he state filed its “ M otion to Stay Trial Proceedings, E xtend S peedy T rial Limits and Continue the Case

P ending Final Disposition o f the P etition for Writ of Certiorari

. ” In the motion, the state notified the court that the state would be filing a certiorari petition seeking this court’s review of the circuit court’ s June 2 evidentiary order. The state argued it was entitled to an extension of the speedy trial limits under rules 3.191(i)(4) and (m) . Rule 3.191(i)(4) provides:

(i) When Time May Be Extended. The periods of time established by this rule may be extended, provi ded the period of time sought to be extended has not expired at the time the extension was procured. An extension may be procured by:

. . .

(4) written or recorded order of the court for a period of reasonable and necessary delay resulting from proceed ings including but not limited to an examination and hearing to determine the mental competency or physical ability of the defendant to stand trial, for hearings on pretrial motions, for appeals by the state , for DNA testing ordered on the

defendant’s be ha lf upon defendant’s motion . . . and for trial of other pending criminal charges against the accused . . . .

(emphasis added) . Further, r ule 3.191(m) provides:

(m) Effect of Mistrial; Appeal; Order of New Trial. A person who is to be tried again or whose trial has been delayed by an appeal by the state or the defendant shall be brought to trial within 90 days from the date of declaration of a mistrial by the trial court, the date of an order by the trial court gra nting a3 new trial, the date of an order by the trial court granting a motion in arrest of judgment, or the date of receipt by the trial court of a mandate, order, or notice of whatever form from a reviewing court that makes possible a new trial for the

def endant, whichever is last in time. If a defendant is not brought to trial within the prescribed time periods, the defendant shall be entitled to the appropriate remedy as set forth in subdivision (p).

(emphasis added).

On June 5, 2017, still the day set for trial , t he court entered the following order :

ORDERED AND ADJUDGED the State’s Motion is GRANTED pending final disposition of the Petition for Writ of

Certiorari in the appellate court, and pursuant to Fla. R. Crim.

P. 3.191(i)(4), Fla. R. Crim . P. 3 .191,

. . . this Court’s Order hereby tolls the speedy trial period pending a final ruling by the appellate court. T he Court further orders that the Defendant be brought to trial within 90 days of the receipt o f the mandate, order, or notice from the appe llate court,
pursuant to Fla. R. Crim. P. 3.191(m).

On September 25, 201 7, t his court denied the state’s certiorari petition

.

On October 10, 2017, t he defendant filed and served his “Notice of Expiration of Speedy Trial Time” under rule 3.191(p) (2) (“ At any time after the expiration of the prescribed time period, the defendant may fil e a separate pleading entitled ‘ Notice of Expiration of Sp eedy Trial Time,’ and serve a copy on the prosecuting authority. ”).

On Octo ber 11, 2017, the circuit court entered an order striking the

defendant’s notice of expiration. The circuit court reasoned that it correctly applied rule 3.191(m) in its June 5 order

.

On O ctober 30, 2017, the defendant filed his motion for discharge. The defendant’s motion argued that the cir cuit court erroneously applied rule 3.191(m). Acco rding to the defendant, the phrase “appeal by the state,” as used in rule 3.191(m), does not include petitions for extraordinary writs.

On October 30, 2017, t he circuit court denied the defendant’s moti on for discharge without comment

.4 The defendant’s instant petition for writ of prohibition followed

.

Our Review

The defendant argues that the circuit court erroneously denied his motion for discharge based on the circuit court’s alleged earlier misapplication of rule 3.191(m). Acco rding to the defendant, the phrase “appeal by the state,” as used in rule 3.191(m), does not include petitions for extraordinary writs.

The state’s response recognizes that rule 3.191 (m) ’s plain language uses the phra se “appeal by the state

. ” However, the state argues that case law from our supreme court, this court, and our sister cou rts, have held that the phrase “appeal by the state” includes petitions for extraordinary

writs , and that the ninety

- day speedy trial e xtension provided in rule 3.191(m) applies whenever a trial has been delayed by an appeal , including petitions for extraordinary writs

.

We ag ree with the state’s argument. We will address the precedent from our supreme court, this court, and our sister c ourts

, in turn.

In Nelson v. State , 414 So. 2d 505 (Fla. 1982), our supreme court held

that a trial court, after receiving a mandate from a district court, has the authority to extend speedy trial time under rule 3.191 when the state seeks

certiorari review in the supreme court of the district court’ s decision. Id.

at 506

- 07. In reaching its holding, our supreme court interpreted the phrase “ appeals by the State,” under rule 3.191, “ to include all appellate applications made by the state, ” and found that “ such an application may constitute an ‘exceptional circumstance’” under rule 3.191 , “ depending on the facts and legal issues involved in a particular case. ” Id. at 508. In

State v. Rohm

, 645 So. 2d 968 (Fla. 1994), our supreme court later held

that “ the 90

- day speedy trial period provided in Florida Rule of Criminal Procedure 3.191(m) applies whenever a trial has been delayed by appeal. ”

Id. at 968.

O ur supreme court’ s precedent has guided this court’s precedent. In

Frazier v. State , 761 So. 2d 337 (Fla. 4th DCA 1999)

, after the trial court extended the speedy trial time pending the outcome of the state’s certiorari petition in the United States Supreme Court, the trial court denied the

defendant’ s motion for discharge. Id. at 339. We affirmed. Id. at 340. After acknowledging our supreme court’s holding in Nelson that the phrase “appeals by the state” in rule 3.191 include s “all appellate applications made by the state,” including certiorari petitions, we concluded that the

state was entitled under rule 3.191(m) to ninety days from the date of the5 trial court’s receipt of the Supreme Court’s mandate in which to bring the

defendant to trial. Id. at 339

- 40.

Our supreme court’s precedent also has been followed by our sister

courts

. In State v. Clarke , 834 So. 2d 398 (Fla. 2d DCA 2003) , the state, after receiving an adverse evidentiary decision on the morning of trial, moved to extend speedy trial to seek certiorari review in the appellate

court

. Id. at 399 . T he trial court denied the state’s extension request

. Id.

When the defendant’s speedy trial time period expired, t he trial court granted the defendant’s motion for discharge, and the s tate appealed. Id.

Our sister court reversed, reasoning:

When the State requests an extens ion of speedy trial for the purpose of pursuing an interl ocutory appeal of a trial

court’ s ruling, “a trial court must grant this extension for the period necessary to complete the appellate proceedings, unless it makes a factual determination that the app eal is being taken for the purpose of delay, upon grounds which are frivolous and not fairly debatable.” State v. Barnett, 366 So. 2d 411, 416 (Fla. 1978)

. Additionally, the Florida Supreme Court has ruled that the language “for appeals by the state”

contained in Florida Ru le of Criminal Procedure 3.191(i )(4) includes “all appellate applications made by the state.” Nelson v. State, 414 So. 2d 505[,] 508 (Fla

. 1982)

. Thus, the mandate

of Barnett applies to petitions seeking certiorari review as w ell as to interlocutory appeals.

834 So. 2d at 399

- 400 (footnote omitted) ; s ee also Wheeler v. Barron , 471

So. 2d 146 , 147 (Fla. 1st DCA 1985) ( “ We hold that where, as here, the speedy trial period is extended for a period covering the pendency of review by the supreme court, the 90

- day extension in [rule 3.191] becomes effective upon disposition of the cause by that court. Therefore, the state is permitted 90 days f rom the date of receipt by the trial court of the

supreme c ourt’ s mandate in which to bring petitioner to trial. ” ).

The defendant’s reliance on a Third District case , State v. Barreiro , 460 So. 2d 945 (Fla. 3d DCA 1984), is misplaced. In Barreiro

, our sister court

held that because rule 3.191 “refers specifically to an ‘appeal,’ it is not applicable where the review is sought by way of a writ of certiorari .” Id. at

947

. Our sister court reached this holding even though it acknowledged

our supreme cour t’s holding in Nelson that the phrase “appeals” as used

in rule 3.191 included all appellate applications

. Id. Our sister court apparently chose to disregard Nelson , stating “ there is no authority or logical requirement for bringing extraordinary reviews within the definition6 of [rule 3.191] appeals .” Id. While we appreciate the Barreiro court’s reasoning, we must disagree with its choice to disregard Nelson

. In any event, our sister court may have had a change of mind on this issue

. In

the more recen tly issued Johnson v. State , 984 So. 2d 609 (Fla. 3d DCA 2008), the Third Distr ict issued a PCA citing the Second District’s Clarke decision, which we cite above

.

Conclusion

Based on the foregoing, we conclude that the circuit court correctly

denied the defendant’s motion for discharge. F ollowing this court’s disposition of the state’s certiorari challenge to the pretrial evidentiary

order

, the circuit court correctly ruled that it had ninety days to bring the

defendant to trial under rules 3.191(i)(4) a nd (m)

. Therefore, we deny the defendant’s petition for writ of prohibition.

Petition denied

.

G ROSS and D AMOORGIAN

, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.