Full Opinion

Third District Court of Appeal State of Florida Opinion filed May 13, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D20-490 Lower Tribunal No. 19-15673 ________________ Rodolfo Tamayo, Petitioner, vs. The State of Florida, Respondent. A Case of Original Jurisdiction—Prohibition. Adam K. Goodman, for petitioner. Ashley Moody, Attorney General, and Ivy R. Ginsberg, Assistant Attorney General, for respondent. Before SALTER, SCALES and MILLER, JJ. SCALES, J. After the trial court denied his motion for discharge, Petitioner Rodolfo Tamayo filed in this Court a petition for writ of prohibition. Petitioner asserts that he is entitled to immediate discharge because the State failed to bring him to trial before the expiration of the speedy trial deadline of Florida Rule of Criminal Procedure 3.191(a). For the reasons set forth below, we deny the petition. I. Relevant Background Because of the deadline constraints built into the speedy trial rule, the operative facts of this case are date-intensive. On August 13, 2019, petitioner was arrested and charged with aggravated battery with great bodily harm. On August 22, 2019, petitioner’s defense counsel filed a notice of appearance. About a month after the arrest, on September 11, 2019, the State announced a “no-action” of the charge. On December 5, 2019, the State re-filed the original charge against petitioner. The State did not re-arrest petitioner on the re-filed charge. On the following day, though, December 6th, the State mailed notice of the reinstated charge to both petitioner and petitioner’s counsel (the attorney who had filed the August 22nd notice of appearance in the initial action). This December 6th notice informed petitioner and his counsel that petitioner’s arraignment on the re-filed charge would occur on December 26, 2019. Neither mailing was returned by the post office as undeliverable. 2 On December 24, 2019, in response to the re-filed charge, defense counsel filed a “Notice of Special Apperance [sic] for Purposes of Challenging Jurisdiction - Motion to Dismiss” seeking dismissal of the re-filed charge on the ground that the trial court had no jurisdiction over the petitioner. Neither petitioner nor his counsel appeared for the December 26th arraignment. At the arraignment, the clerk set February 18, 2020, as the trial date for the re-filed charge, which was two weeks after the February 4, 2020 expiration of the speedy trial period. This February 4, 2020 deadline was 175 days from the date of petitioner’s August 13, 2019 arrest. See Fla. R. Crim. P. 3.191(a) (providing that every person charged with a felony shall be brought to trial within 175 days after arrest). On February 13, 2020, petitioner filed a Motion to Dismiss and Discharge the reinstated criminal charge. The trial court heard petitioner’s motion on February 20 and 25, 2020, and orally denied the discharge motion, without prejudice to petitioner filing a Notice of Expiration of Speedy Trial Time, pursuant to rule 3.191(p).1 Rather than filing a rule 3.191(p)(2) notice, however, petitioner filed the instant petition with this Court. 1 Rule 3.191(p)(2) provides that, any time after expiration of the speedy trial period, a defendant may file a notice of expiration of speedy trial period. If a defendant files this notice, then within five days of such filing the trial court is required to hold a hearing to determine whether a trial delay is justified, as prescribed in rule 3.191(j). See Fla. R. Crim. P. 3.191(p)(3). If the trial court determines a delay is not justified, then the defendant must be brought to trial within ten days of such determination. Id. This is commonly referred to as the State’s “recapture period.” See e,g., State v. 3 II. Analysis Petitioner maintains, as he did below in his discharge motion, that the trial court lacks jurisdiction over him because the speedy trial period, commencing with petitioner’s August 13, 2019 arrest, expired. Petitioner argues that, because the December 5th reinstated charge was based on the same conduct as the initial charge, and because petitioner was not re-arrested for the December 5th reinstated charge, petitioner was not required to file a rule 3.191(p)(2) notice. Petitioner argues, therefore, that the trial court lost jurisdiction over him on February 4, 2020, when the speedy trial period for the initial charge expired. Indeed, rule 3.191(o)2 provides that the speedy trial time period is not tolled when the State dismisses, and later reinstates, charges based on the same conduct that formed the basis for the initial charge. Nelson, 26 So. 3d 570, 575 (Fla. 2010). If a defendant is not brought to trial within this ten-day recapture period through no fault of the defendant, then the defendant is entitled to discharge per rule 3.191(p)(3). 2 Rule 3.191(o) reads in its entirety as follows: 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. 4 When the State terminates a prosecution during the speedy trial period, however, the State may re-file the same charge prior to the expiration of the speedy trial period and proceed to trial on the reinstated charge, so long as the defendant has notice of the reinstated charge within the speedy trial period. Born-Suniaga v. State, 256 So. 3d 783, 788 (Fla. 2018) (“[B]ecause the State notified [defendant] 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 [defendant].”) (emphasis added); accord Cordero v. State, 686 So. 2d 737, 738 (Fla. 3d DCA 1997) (reversing conviction based on speedy trial violation when State re-filed charges within speedy trial time period, but did not arrest or otherwise notify defendant of the re-filed charges until after expiration of speedy trial period). In this case, as in Born-Suniaga and Cordero, the State nolle prossed the initial charge and then, based on the same conduct warranting the initial charge, re-filed the charge. But the State in this case, unlike in Born-Suniaga and Cordero, notified petitioner and his counsel of the re-filed charges prior to the expiration of the speedy trial period. The record provides us with two indicia that petitioner was provided notice that the State had re-filed the charges against petitioner. First, the lower court docket shows an entry, dated December 6, 2019, that reads: “NOTICE ISSUED TO: DEFN/ATTY.” Second, on December 24, 2019, 5 petitioner’s counsel filed a motion in the trial court seeking to dismiss the re-filed charges. If nothing else, this December 24, 2019 filing plainly demonstrates that the December 6th notice was received by petitioner’s counsel. Even if petitioner himself did not receive the notice that the State had re-filed the charges against him, it is well settled that notice to defense counsel is imputed to the defendant. See State v. White, 794 So. 2d 682, 683 (Fla. 2d DCA 2001). Again, in contrast to Born-Suniaga and Cordero, the State in this case was entitled to the benefit of rule 3.191(p)’s recapture period and petitioner was required (and invited by the trial court) to file a rule 3.191(p)(2) notice. Then, had petitioner filed such a notice and not been brought to trial within the recapture period, the petitioner would have been entitled to discharge under rule 3.191(p)(3). III. Conclusion Because the record clearly shows the State sent notice to petitioner and his counsel that the State had re-filed the charge against petitioner prior to the expiration of the 175-day speedy trial period, and that petitioner’s counsel received this notice, petitioner is not entitled to discharge under rule 3.191(a). Petition denied. 6