Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT JEFF ANTHONY MURPHY, Petitioner, v. STATE OF FLORIDA, Respondent. No. 2D22-2126 November 30, 2022 Petition for Writ of Prohibition to the Circuit Court for Highlands County; Peter F. Estrada, Judge. Howard L. Dimmig, II, Public Defender, and Rhonda J. Whittaker, Assistant Public Defender, Bartow, for Petitioner. Ashley Moody, Attorney General, and Lydon W. Schultz, Assistant Attorney General, Tampa, for Respondent. LUCAS, Judge. Jeff Anthony Murphy seeks a writ of prohibition preventing the circuit court from proceeding with his criminal prosecution. In a previous order of this court, we granted the petition for writ of prohibition, and this opinion now follows. I. The issue before us concerns the right to speedy trial, so we must begin with the sequence of pertinent dates. On May 9, 2019, the State filed an information charging Mr. Murphy with grand theft ($10,000 or more), see § 812.014, Fla. Stat. (2015), and scheme to defraud thirteen individuals in Highlands County, see § 817.034, Fla. Stat. (2015). The offenses were alleged to have been committed between September 1, 2015, and March 31, 2016. On May 15, 2019, the trial court issued a capias for Mr. Murphy's arrest, which the Highlands County Sheriff's Office received on May 22, 2019. As it turned out, at the time the information was filed and the capias was issued, Mr. Murphy was in custody in the Seminole County jail.1 On August 15, 2019, the Highlands County sheriff placed a hold on Mr. Murphy. But, for reasons not clear from the record, Mr. Murphy was transferred to the custody of the Department of Corrections (DOC) on January 6, 2021, without the 1 Apparently, he had been in that jail since late November of 2018. 2 capias warrant on the grand theft case having been executed. When the sheriff's office learned of Mr. Murphy's transfer the next day, it placed a detainer on him. Mr. Murphy remained in DOC custody until December 20, 2021, when he was transferred to Highlands County and the capias was finally executed. To briefly recap, then, an information was filed on May 9, 2019; a court issued a capias warrant in that case on May 15, 2019; but the warrant was not executed until December 20, 2021, more than thirty months later, on a defendant who had been in state custody the entire time. On February 17, 2022, Mr. Murphy filed a motion to dismiss the information claiming that his Sixth Amendment right to a speedy trial had been violated. He asserted that he was unaware of the capias warrant and the grand theft case until the warrant's execution on December 20, 2021, and that the State's delay in executing the warrant was unreasonable. He further argued that his ability to prepare for the grand theft case, interview witnesses, and obtain potentially exculpatory evidence had been prejudiced because two of the alleged victims had died, one of whom was the owner of the business from which Mr. Murphy allegedly stole. 3 The circuit court held a hearing on his motion on March 14, 2022. In response to Mr. Murphy's arguments, the State argued that the delay in service, though lengthy, was justified because Mr. Murphy was being prosecuted in Seminole County. The State also pointed out that a law enforcement office had placed a hold or a detainer on Mr. Murphy,2 which, the State implied, afforded some measure of notice of the grand theft charge. The circuit court denied the motion to dismiss. Although the court noted that two years and seven months seemed to be an uncommonly long delay to execute a capias warrant, the court found that a minimum of one-and-one-half years of the delay was attributable to the COVID-19 pandemic,3 which the court 2 At the hearing, there appears to have been some confusion as to precisely when a hold had been placed or a detainer lodged on Mr. Murphy. The circuit court ultimately determined that the detainer was lodged against him on January 7, 2021. However, the imposition of a detainer has no impact on our analysis of whether Mr. Murphy's speedy trial right was violated. Cf. Gethers v. State, 838 So. 2d 504, 508 (Fla. 2003) ("The filing of a detainer or a hold does not have the same effect as an arrest."). 3 In 2020, COVID-19, a highly contagious respiratory virus, began spreading throughout the United States. See World Health Organization, Timeline of WHO's Response to COVID-19, available at https://www.who.int/news-room/detail/29-06-2020- covidtimeline. In March of 2020, the Governor of Florida declared a 4 determined would not be attributable to the State, and that the fact that Mr. Murphy was incarcerated at the time the information was filed and the capias warrant was issued was attributable to him.4 As to Mr. Murphy's claimed prejudice, the court acknowledged that there was a presumption of prejudice that "intensifies over time" but reasoned that the death of two victim witnesses "may actually favor Defendant rather than prejudice him." The court concluded that the delay, though lengthy, did not violate Mr. Murphy's Sixth Amendment right to a speedy trial. state of emergency in response to the spread of COVID-19 throughout the state. See Miami-Dade County v. Miami Gardens Square One, Inc., 314 So. 3d 389, 391 (Fla. 3d DCA 2020). Shortly thereafter, "the Florida Supreme Court issued several administrative orders (and amendments thereto) in an effort to provide temporary guidelines, benchmarks[,] and requirements for the continuity of operations within the trial and appellate courts." See Clarington v. State, 314 So. 3d 495, 500 (Fla. 3d DCA 2020). 4 As to this latter point in the court's ruling, we note that the State has refrained from arguing that Mr. Murphy's incarceration could impact his entitlement to assert his constitutional right to a speedy trial. The concession on this point was proper. See, e.g., Dickey v. Cir. Ct., Gadsden Cnty., Quincy, Fla., 200 So. 2d 521, 524 (Fla. 1967) (rejecting trial court's reasoning that "a person incarcerated for one crime has no right to demand the constitutionally promised speedy trial and no right to complain against its denial" and recognizing "the right of a person serving a sentence of imprisonment in this state to demand a speedy trial of other criminal charges pending against him in Florida courts"). 5 II. Mr. Murphy has filed a timely petition for writ of prohibition challenging the trial court's ruling. The deprivation of a defendant's constitutional right to a speedy trial can be considered and remedied through prohibition. See Sherrod v. Franza, 427 So. 2d 161, 163 (Fla. 1983); Francois v. State, 317 So. 3d 1268, 1270 (Fla. 3d DCA 2021). The Third District summarized how appellate courts ought to consider dismissal rulings under prohibition in criminal cases: In reviewing a petition for writ of prohibition, this Court must consider the merits of the defendant's motion to dismiss in the same manner as if it were on direct appeal. See Sutton v. State, 975 So. 2d 1073, 1077–78 (Fla. 2008); Hair v. State, 17 So. 3d 804, 805 (Fla. 1st DCA 2009), review denied, 60 So. 3d 1055 (Fla. 2011). Thus, we review the court's legal findings de novo and we review the court's factual findings for competent, substantial evidence. Hair, 17 So. 3d at 805. Viera v. State, 163 So. 3d 602, 604 (Fla. 3d DCA 2015). III. Our court set forth the framework for considering claims of speedy trial violations in Seymour v. State, 738 So. 2d 984, 985 (Fla. 2d DCA 1999): 6 The constitutional right to a speedy trial attaches upon arrest, filing of an indictment or an information, or other official accusation. See United States v. MacDonald, 456 U.S. 1, 6, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982). Determining whether a violation of the constitutional right to speedy trial has occurred includes consideration of federal case law, especially Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), which identifies four guiding factors. See State v. Roundtree, 438 So. 2d 68 (Fla. 2d DCA 1983); Howell v. State, 418 So. 2d 1164 (Fla. 1st DCA 1982). These four factors are (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant has timely asserted his rights; and (4) the existence of actual prejudice as a result of the delay. No single factor is either necessary or determinative, but a balancing of the four factors must be done to reach a just conclusion. See Howell, 418 So. 2d at 1171, 1174; Roundtree, 438 So. 2d at 70. This framework has been further expounded upon by the federal courts: "[T]o trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from 'presumptively prejudicial' delay . . . ." Doggett v. United States, 505 U.S. 647, 651-52, 112 S.Ct. 2686, 2690-91, 120 L.Ed.2d 520 (1992) (citing Barker, 407 U.S. at 530– 31, 92 S.Ct. at 2192). "Only if this threshold point is satisfied may the court proceed with the final three factors in the Barker analysis." Clark, 83 F.3d at 1352. Delays exceeding one year are generally found to be "presumptively prejudicial." Doggett, 505 U.S. at 652 n.1, 112 S. Ct. at 2691 n.1; see also Clark, 83 F.3d at 1352. If, after the threshold inquiry is satisfied and the second and third factor are considered, all three of these factors weigh heavily against the Government, the defendant need not show actual prejudice (the fourth 7 factor) to succeed in showing a violation of his right to a speedy trial. Doggett, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520. United States v. Ingram, 446 F.3d 1332, 1336 (11th Cir. 2006) (alteration in original). Reviewing the Barker factors here, we can quickly dispense with the first, or threshold, factor concerning the length of the delay. The circuit court weighed this factor against the State and found that the nearly two-and-a-half-year delay between the filing of the grand theft information and executing the capias warrant5 on Mr. Murphy was presumptively prejudicial and triggered a full consideration of the remaining three factors under Barker. We readily agree with that conclusion. See State v. Roundtree, 438 So. 2d 68, 71 (Fla. 2d DCA 1983) (holding that delay of twenty-one and a half months implicated full analysis under Barker); see also State v. Union, 469 So. 2d 840, 841 (Fla. 2d DCA 1985) (fifteen months); Hallman v. State, 462 So. 2d 120, 121 (Fla. 2d DCA 5 Accord Howell v. State, 418 So. 2d 1164, 1171 (Fla. 1st DCA 1982) ("[T]he period of time sufficient to constitute presumptive prejudice is measured from the time the Sixth Amendment right to a speedy trial becomes effective—arrest, indictment, or the filing of an information, whichever comes first—until the time of trial."). 8 1985) (thirty-one months); State v. Joyner, 460 So. 2d 584, 585 (Fla. 5th DCA 1984) (twenty months); Niles v. State, 120 So. 3d 658, 664 (Fla. 1st DCA 2013) ("The longer the pretrial delay extended beyond the 'bare minimum' necessary to show presumptive prejudice, the stronger the presumption that the pretrial delay prejudiced the defendant." (quoting United States v. Villarreal, 613 F.3d 1344, 1350 (11th Cir. 2010))). Turning, then, to the second factor, the reason for the delay, Doggett requires us to ask who was more "at fault" for the delay, the defendant or the State. Doggett, 505 U.S. at 652-53. "Because the prosecutor and the court have an affirmative constitutional obligation to try the defendant in a timely manner . . . the burden is on the prosecution to explain the cause of the pretrial delay." Niles, 120 So. 3d at 664 (quoting Ingram, 446 F.3d at 1337)); see also Howell v. State, 418 So. 2d 1164, 1173 (Fla. 1st DCA 1982) ("The burden to account for such delay, however, is decidedly upon the prosecution."). Courts have further clarified this inquiry by characterizing three categories of fault for the delay: (1) deliberate, (2) negligent, or (3) justified. See Howell, 418 So. 2d at 1171. 9 We have no hesitation concluding that the fault here lies entirely with the State. As the Third District observed in a similarly situated case, the State is "[c]learly" aware of a defendant's whereabouts when that defendant is "incarcerated in a state institution." See Bonel v. State, 651 So. 2d 774, 776 (Fla. 3d DCA 1995). In the case at bar the State has offered no compelling reason why it failed to execute a capias warrant for two and a half years on a defendant who had been in State custody the entire time. In so holding, we reject the State's proffered justification that the COVID-19 pandemic excused any part of this delay. While it is true that Florida Administrative Order Number AOSC20-23 issued by the Chief Justice of the Florida Supreme Court temporarily suspended the speedy trial procedural rule for court hearings and jury trials, the issuance of that administrative order does not address the claim Mr. Murphy has brought. Mr. Murphy asserts that his constitutional right to a speedy trial was violated. See, e.g., State v. Naveira, 873 So. 2d 300, 308 (Fla. 2004) ("The right to speedy trial provided in rule 3.191 is not coextensive with the broader constitutional right to a speedy trial. . . . As we have 10 previously noted, 'Florida's speedy trial rule is a procedural protection and, except for the right to due process under the rule, does not reach constitutional dimension.' As opposed to the right provided in the rule, '[t]he constitutional speedy trial period is measured by tests of reasonableness and prejudice, not specific numbers of days.' " (alteration in original) (citation omitted) (first quoting State v. Bivona, 496 So. 2d 130, 133 (Fla. 1986); then quoting Fonte v. State, 515 So. 2d 1036, 1038 n.2 (Fla. 3d DCA 1987))). His claim concerns not the State's failure to timely bring him to trial under Florida Rule of Criminal Procedure 3.191, but the State's failure to timely serve a warrant on him. The State has offered no evidence nor advanced any argument as to how the recent pandemic impeded the State's ability to execute a capias warrant on an incarcerated defendant. The State was simply negligent, and it appears to us that negligence was inexcusable. As to the third factor under Barker, the State concedes that Mr. Murphy's filing of a motion to dismiss less than two months after his arrest on the grand theft charge was a timely assertion of his right to a speedy trial, accord Seymour, 738 So. 2d at 986; 11 Howell, 418 So. 2d at 1173-74, and so we move on to the fourth and final factor to consider. In its order, the circuit court acknowledged that the presumption of prejudice "intensifies over time" and that "particularized proof of actual prejudice" is not necessary in every speedy trial claim. In both regards, the court was correct. See, e.g., Niles, 120 So. 3d at 664, 666 (" 'The longer the pretrial delay . . . the stronger the presumption that the pretrial delay prejudiced the defendant.' . . . [W]here the first three [Barker] factors weigh heavily against the State, prejudice is presumed." (first quoting Villarreal, 613 F.3d at 1350; then citing Ingram, 446 F.3d at 1336)). Nevertheless, the court reasoned that the deaths of two victim witnesses "may actually help" Mr. Murphy's defense. The problem with that speculation is just that—it was speculation. The court was provided no evidence about what these two witnesses witnessed, what their testimony would have been, or how their passing would impact the State's case or Mr. Murphy's defense.6 "If 6 In its response to the petition, the State attempts to turn the tables, arguing that Mr. Murphy "neither pled, proffered, nor introduced any additional evidence through testimony or otherwise regarding how or why the death of these two alleged victims 12 witnesses die or disappear during a delay, the prejudice is obvious." Barker, 407 U.S. at 532. Here the prejudice is glaring because the State's delay has effectively thwarted Mr. Murphy's ability to call or cross-examine two witnesses the State contended were among the impaired Petitioner's defense." But the prior three Barker factors weighed heavily against the State; so it was the State's burden, not Mr. Murphy's, to show that Mr. Murphy was not prejudiced by the State's delay. See, e.g., Niles, 120 So. 3d at 667 ("The State acknowledges in this appeal that the presumption of prejudice from a lengthy delay . . . shifts the burden to the government to rebut the presumption. This requires the State to affirmatively prove that the delay did not impair the defendant's ability to prepare a defense." (citing Doggett, 505 U.S. at 658 n.4; United States v. Battis, 589 F.3d 673, 682 (3d Cir. 2009))). In so holding, we are mindful of the Supreme Court's guidance provided on this factor in Doggett, 505 U.S. at 655-56: Barker explicitly recognized that impairment of one's defense is the most difficult form of speedy trial prejudice to prove because time's erosion of exculpatory evidence and testimony "can rarely be shown." 407 U.S., at 532, 92 S.Ct., at 2193. And though time can tilt the case against either side, see id., at 521, 92 S.Ct., at 2187; [U.S. v.] Loud Hawk, supra, 474 U.S. [302], at 315, 106 S.Ct., at 656 [1986], one cannot generally be sure which of them it has prejudiced more severely. Thus, we generally have to recognize that excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify. While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria, see Loud Hawk, supra, at 315, 106 S.Ct., at 656, it is part of the mix of relevant facts, and its importance increases with the length of delay. 13 victims of what was allegedly a scheme to defraud thirteen people. The court erred when it concluded otherwise. The petitioner has demonstrated he is entitled to relief. Accordingly, we grant the petition, quash the trial court's April 11, 2022 order denying Mr. Murphy's motion to dismiss, and remand the case for discharge. Petition granted. KHOUZAM and SLEET, JJ., Concur. Opinion subject to revision prior to official publication. 14