Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-3181 _____________________________ TREVON MARQUISE SMITH, Petitioner, v. STATE OF FLORIDA, Respondent. _____________________________ Petition for Writ of Prohibition—Original Jurisdiction. December 30, 2020 WINOKUR, J. Trevon Marquise Smith petitions this Court for a writ of prohibition, claiming that the Florida Supreme Court’s administrative orders relating to COVID-19 suspending the time periods involving the speedy trial procedure limit only the time in which the State must try the defendant, and not the time in which the State must file an amended charge. We disagree and deny the writ. Smith was arrested on December 30, 2019. On January 28, 2020, the State filed a one-count information charging him with armed robbery. On August 31, 2020, the State amended the information to add a count of possessing a firearm as a convicted felon. On September 21, 2020, Smith filed a notice of expiration of speedy trial and motion for discharge of the second count in the amended information. Smith’s motion for discharge argued that the added count was improper because the information had been amended after the expiration of the time for speedy trial. The trial court struck the notice and motion as moot, concluding that the Florida Supreme Court’s administrative orders suspending the time periods for speedy trial permitted the State to amend the information. Smith asks this Court to issue a writ of prohibition commanding the lower court to quash the trial court’s order. Prohibition is an appropriate remedy to prohibit trial court proceedings where the State has violated the speedy-trial rule. See Sherrod v. Franza, 427 So. 2d 161, 163 (Fla. 1983). A trial court lacks jurisdiction to try a defendant when he is entitled to discharge under the speedy-trial rule. Id. Florida Rule of Criminal Procedure 3.191 sets forth the requirements for speedy trial. Under subsection (a), a defendant must be brought to trial within 90 days of arrest if charged with a misdemeanor or 175 days of arrest if charged with a felony. If this time period expires, the defendant may file a notice of expiration of time for speedy trial, after which the court must hold a hearing on the notice within five days and the defendant must be brought to trial within ten days of the hearing. Fla. R. Crim. P. 3.191(p). Rule 3.191 does not specifically address whether an information may be amended after the time period under Rule 3.191(a) expires. However, this Court has held that the State may not do so if it would result in new charges arising from the same facts and circumstances that gave rise to the original charge. See Holland v. State, 210 So. 3d 238, 239 (Fla. 1st DCA 2017); see also State v. Clifton, 905 So. 2d 172 (Fla. 5th DCA 2005). In this case, the amended information added a new charge, and under ordinary circumstances the new charge could be impermissible. In response to the COVID-19 pandemic, however, the Florida Supreme Court suspended “[a]ll time periods involving the speedy trial procedure, in criminal and juvenile court proceedings[.]” Fla. Admin. Order No. AOSC20-13 (Fla. Mar. 13, 2020), https://www.floridasupremecourt.org/content/download/631744/fil e/AOSC20-13.pdf. In a separate provision of the same order, the court suspended “[a]ll grand jury proceedings, jury selection 2 proceedings, and criminal and civil jury trials[.]” Id. At the beginning of the order, the court described its intent: “WHEREAS it is the intent of this order to suspend the speedy trial procedure as stated herein in the manner described in Sullivan v. State, 913 So. 2d 762 (Fla. 5th DCA 2005), and State v. Hernandez, 617 So. 2d 1103 (Fla. 3rd DCA 1993)[.]” Id. AOSC20-13 suspended the time periods involving speedy trial from the close of business on March 13, 2020, through the close of business on March 30, 2020, “or as provided by subsequent order.” Subsequent administrative orders extended the suspension. 1 Smith contends that the references to Sullivan and Hernandez show that the court intended to suspend only the time limit to try a defendant and not the other time limits related to speedy trial, including the time to file or amend charges. This contention fails for several reasons. First, the plain language of the applicable orders states that “[a]ll time periods involving the speedy trial procedure, in criminal and juvenile court proceedings” are suspended. E.g., Fla. Admin. Order No. AOSC20-13 (Fla. Mar. 13, 2020), https://www.floridasupremecourt.org/content/download/631744/fil e/AOSC20-13.pdf (emphasis added). While Rule 3.191 does not explicitly address whether the State may file or amend an information after the Rule 3.191(a) time periods have expired, the law regarding this matter relies exclusively on the requirements of Rule 3.191. See, e.g., State v. Williams, 791 So. 2d 1088 (Fla. 2001) (interpreting Rule 3.191 as prohibiting the State from filing charges based upon facts giving rise to an arrest more than 175 1 See Fla. Admin. Order No. AOSC20-17 (Fla. Mar. 24, 2020); Fla. Admin. Order No. AOSC20-23 (Fla. Apr. 6, 2020); Fla. Admin. Order No. AOSC20-23, Amend. 1 (Fla. May 4, 2020); Fla. Admin. Order No. AOSC20-23, Amend. 2 (Fla. May 21, 2020); Fla. Admin. Order No. AOSC20-23, Amend. 3 (Fla. June 8, 2020); Fla. Admin. Order No. AOSC20-23, Amend. 4 (Fla. June 16, 2020); Fla. Admin. Order No. AOSC20-23, Amend. 5 (Fla. July 2, 2020); Fla. Admin. Order No. AOSC20-23, Amend. 6 (Fla. Aug. 12, 2020); Fla. Admin. Order No. AOSC20-23, Amend. 7 (Fla. Oct. 2, 2020); Fla. Admin. Order No. AOSC20-23, Amend. 8 (Fla. Nov. 23, 2020). 3 days following arrest); Clifton, 905 So. 2d at 178 (interpreting Rule 3.191 as prohibiting the State from amending an information more than 175 days following arrest to add new charges if they arose from the same criminal episode as the charges contained in the original information). Because the rules limiting the State’s ability to file or amend an information after 90 or 175 days are indisputably part of the “speedy trial procedure,” 2 the orders suspend them. Second, the orders indicate that the time periods for speedy trial ought to be tolled in the same manner as in Sullivan and Hernandez, not that the suspension is limited to the same issues addressed in those cases. The language “suspend the speedy trial procedure . . . in the manner described in” Sullivan and Hernandez makes clear that the manner of suspension—not the matter suspended—in Sullivan and Hernandez applies. Fla. Admin. Order No. AOSC20-13 (Fla. Mar. 13, 2020), https://www.floridasupremecourt.org/content/download/631744/fil e/AOSC20-13.pdf (emphasis added). The manner of suspension described in Sullivan and Hernandez is to toll “all time limits authorized by rule and statute affecting the speedy trial procedure.” Sullivan, 913 So. 2d at 763; Hernandez, 617 So. 2d at 1103. The petitioner is correct that both Sullivan and Hernandez dealt with the recapture period set forth in Florida Rule of Criminal Procedure 3.191(p)(3), but this is irrelevant. Not only do the supreme court’s current administrative orders rely on these cases only for the manner of suspension—tolling—and not the limits of the suspension, but both cases state that “all time limits authorized by the rule” were tolled. Sullivan, 913 So. 2d at 763 (emphasis added); Hernandez, 617 So. 2d at 1103. Notably, the references to Sullivan and Hernandez in AOSC20-13 appear in the “whereas” clauses of the order, giving context to the order but carrying no power. The order itself states: “The suspension of time limits under the speedy trial procedure 2 Smith argues that the phrase “in criminal and juvenile court proceedings” limits the suspension to exclude filing charges and amended charges. We disagree. Criminal and juvenile court proceedings include filing charges and amended charges in court. 4 restores additional days equal to the number stated herein.” This is precisely what happened in Sullivan and Hernandez, and it clarifies that the court intended to toll days as described in those cases. While the references give context, only this ordered language controls. Third, AOSC20-23, Amendment 8, sheds further light on the supreme court’s intent. It states: “Any time that accrued under the procedure for a person before the suspension began on March 13, 2020, shall be subtracted from the time periods provided by the procedure. See, e.g., Sullivan v. State, 913 So. 2d 762 (Fla. 5th DCA 2005), and State v. Hernandez, 617 So. 2d 1103 (Fla. 3rd DCA 1993).” These citations suggest that the supreme court’s references to Sullivan and Hernandez in earlier administrative orders were intended to demonstrate how the time should be tolled, not to limit the application of the order to the circumstances present in Sullivan and Hernandez. Finally, the supreme court’s decision to suspend trials and suspend all speedy trial time limits in separate paragraphs suggests that it intended to suspend—as it said—“[a]ll time periods involving the speedy trial procedure.” (Emphasis added.) If the court had intended to suspend the requirements only for the time for trial itself, it could have indicated in the paragraph specifically suspending trials that the suspension also applied to the time limit to bring a defendant to trial. We also reject Smith’s argument that the pandemic affects only the State’s ability to prepare for and hold trial, not its ability to bring charges. Disruptions from COVID-19 are not limited to preventing trials. Moreover, even in cases where the State could have brought or amended charges within the time limits set forth in Rule 3.191, the Florida Supreme Court’s administrative orders suspended the requirement that it do so. Accordingly, the petition is DENIED. OSTERHAUS and JAY, JJ., concur. 5 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Charlie Cofer, Public Defender, and Elizabeth Hogan Webb, Assistant Public Defender, Jacksonville, for Petitioner. Ashley Moody, Attorney General, and Adam B. Wilson, Assistant Attorney General, Tallahassee, for Respondent. 6