subject: Court Of Appeal Affirms No Violation Of Right To A Speedy Trial For Felony Dui Charge [print this page] In the case Bonilla vIn the case Bonilla v. State the Fifth District Court of Appeal held as follows:
The district court denied defendant's petition for writ of prohibition based on a violation of the speedy trial rule in a felony DUI case.
The defendant alleged he was charged, by notice to appear, with a misdemeanor DUI violation on July 17, 2010. The prosecution subsequently nolle prosequied the misdemeanor charge. On October 25, 2010, the prosecution filed a felony charge of DUI resulting in serious bodily injury, and, by an amended information filed on November 12, 2010, added the felony charge of leaving the scene of an accident with injuries. The felony charges arose out of the same criminal episode as the dismissed misdemeanor charge.
On January 21, 2011, defendant filed a notice of expiration of speedy trial & motion for discharge. Defendant asserted that speedy trial had expired and that no recapture period was available because the misdemeanor charges had been nolle prosequied, relying on rule 3.191(o), Florida Rules of Criminal Procedure. The trial court ruled with defendant concerning the leaving the scene charge filed on November 12, 2010, but denied his motion concerning the DUI resulting in serious bodily injury charge. The trial court reasoned that the DUI resulting in serious bodily injury charge was filed in the misdemeanor speedy trial period (to which the trial judge added the recapture period, which he included in his computation), but that the leaving the scene charge was untimely since it was outside this time period.
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The district court held that, even though the trial judge's reasoning was in error, that he reached the appropriate result on the charge that is the subject matter of this appeal. The district court noted that, in fairness towards the trial judge, the parties didn't offer dispositive authority on this point. In Nesworthy v. State, 648 So. 2d 259 (Fla. 5th DCA 1994), the district court ruled that a felony DUI resulting in serious bodily injury charge could be filed within the felony speedy trial period, regardless that a misdemeanor DUI charge arising out of the same criminal episode was previously dismissed.
The district court rejected a similar contention made by defendant -- that rule 3.191(o) vitiated the recapture period. The district court of appeal noted that its order in Nesworthy was expressly approved in State v. Woodruff, 676 So. 2d 975, 978 (Fla. 1996). Here, both felony charges were filed within 175 days of arrest. When defendant filed the notice of expiration of speedy trial, the state was entitled to the benefit of the recapture window. Because the trial court held a timely hearing regarding the notice and scheduled trial inside the recapture period, defendant was not entitled to discharge.
