HAROLD FRANCOIS v. THE STATE OF FLORIDA

District Court of Appeal of Florida

HAROLD FRANCOIS v. THE STATE OF FLORIDA

CourtDistrict Court of Appeal of Florida

DecidedMay 12, 2021

Docket21-0649

StatusPublished

This text of HAROLD FRANCOIS v. THE STATE OF FLORIDA (HAROLD FRANCOIS v. THE STATE OF FLORIDA) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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HAROLD FRANCOIS v. THE STATE OF FLORIDA, (Fla. Ct. App. 2021).

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Opinion

Third District Court of Appeal State of Florida

Opinion filed May 12, 2021. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-0649 Lower Tribunal No. F20-12657 ________________

Harold Francois, Petitioner,

vs.

The State of Florida, Respondent.

A Case of Original Jurisdiction – Prohibition.

Shemtov & Hillstrom, PLLC, and Carter Hillstrom (Fort Lauderdale), for petitioner.

Ashley Moody, Attorney General, and Joanne Diez, Assistant Attorney General, for respondent.

Before EMAS, C.J., and FERNANDEZ, and MILLER, JJ.

MILLER, J. Petitioner, Harold Francois, seeks a writ of prohibition, contending his

prosecution for possession of a firearm by a convicted felon is barred by

operation of the speedy trial rule. See Fla. R. Crim. P. 3.191. Finding

statewide speedy trial suspensions support the denial of discharge below,

we align ourselves with the views expressed by the First District Court of

Appeal in Smith v. State, 310 So. 3d 1101 (Fla. 1st DCA 2020) and deny

relief.

BACKGROUND

On April 5, 2020, while investigating an aggravated assault, a law

enforcement officer discovered Francois in the vicinity of a rifle. Francois

was arrested for the misdemeanor charge of carrying a concealed weapon,

in violation of section 790.01(1), Florida Statutes. During his arraignment on

the misdemeanor charge, the State announced it intended to “bind up” the

charges and file a felony information. It subsequently filed a nolle prosequi

memorandum and the case was administratively closed.

Several months later, a warrant, unaccompanied by any charging

document, issued for the arrest of Francois for the charge of possession of

a firearm by a convicted felon, in violation of section 790.23(1), Florida

Statutes. An additional three months elapsed before the warrant was

served.

2 On December 18, 2020, the State filed a single-count felony

information reflecting the new charge. Contending the State impermissibly

filed the information beyond the 175-day speedy trial period prescribed by

Florida Rule of Criminal Procedure 3.191, Francois filed a notice of expiration

of speedy trial and motion for discharge. 1 Relying upon a series of

administrative orders suspending speedy trial procedures, the trial court

denied relief. The instant petition ensued.

ANALYSIS

“[P]rohibition is an appropriate remedy to prohibit trial court

proceedings where an accused has been denied his right to a speedy trial

and his motion for discharge has been denied.” Lowe v. Price, 437 So. 2d

142, 143 (Fla. 1983) (citation omitted); see also Sherrod v. Franza, 427 So.

2d 161, 163 (Fla. 1983) (“A court does not have jurisdiction to try a defendant

when he is entitled to discharge on the ground of double jeopardy or

collateral estoppel, or if he is entitled to a discharge because of a violation

of his immunity from prosecution or his right to a speedy trial.”) (citing

Bennett H. Brummer, et al., Extraordinary Writs: A Powerful Tool for the

Florida Practitioner, 33 U. Miami L. Rev. 1045 (1979)).

1 Francois subsequently amended his motion.

3 “As expressly guaranteed by both the state and federal constitutions,”

the accused “possesses the right to a speedy and public trial.” State v.

Nelson, 26 So. 3d 570, 574 (Fla. 2010) (citing Amend. VI, U.S. Const.; Art.

I, § 16(a), Fla. Const.). This constitutional protection is fortified by Florida

statute. See § 918.015, Fla. Stat.

The Florida Rules of Criminal Procedure provide parameters by which

the accused may exercise his or her right to speedy trial. See § 918.015(2),

Fla. Stat. (“The Supreme Court shall, by rule of said court, provide

procedures through which the right to a speedy trial as guaranteed by

subsection (1) and by [§] 16, Art. I of the State Constitution, shall be

realized.”). However, the rules are merely procedural, and, except for the

right to due process, do “not reach constitutional dimension.” State v.

Naveira, 873 So. 2d 300, 308 (Fla. 2004) (quoting State v. Bivona, 496 So.

2d 130, 133 (Fla. 1986)).

As relevant to this case, Florida Rule of Criminal Procedure 3.191(a)

provides, “every person charged with a crime shall be brought to trial . . .

within 175 days of arrest if the crime charged is a felony. If trial is not

commenced within th[is] time period[], the defendant shall be entitled to the

appropriate remedy as set forth in subdivision (p).” Subdivision (p) provides

for the filing of a notice of expiration of speedy trial, which, in turn, triggers

4 the requirement that the court convene a hearing on the notice within five

days. Fla. R. Crim. P. 3.191(p)(3). Unless there is a determination at the

hearing the speedy trial period has not expired, the court must “order that

the defendant be brought to trial within [ten] days.” Id. Further, “[a]

defendant not brought to trial within the [ten]-day period through no fault of

the defendant, on motion of the defendant or the court, shall be forever

discharged from the crime.” Id.

The speedy trial rule “does not address the deadline for filing the

charging document itself,” and, notwithstanding the procedure delineated in

subdivision (p), the Florida Supreme Court has “held that the State cannot

wait until after the speedy trial period to charge a defendant.” Naveira, 873

So. 2d at 305 (citing State v. Williams, 791 So. 2d 1088, 1091 (Fla. 2001)).

For purposes of the rule, “[t]he speedy trial period begins when a defendant

is first taken into custody, not when charges are filed.” Id. (citation omitted).

The accused is deemed to be in custody at such time as “the person is

arrested as a result of the conduct or criminal episode that gave rise to the

crime charged.” Fla. R. Crim. P. 3.191(d)(1).

Despite this confluence of rules and precedent, it is abundantly clear

the speedy trial period may be suspended or extended by administrative

order issued by the chief justice of the Florida Supreme Court. See Fla. R.

5 Crim. P. 3.191(i)(5); Fla. R. Gen. Prac. & Jud. Admin. 2.205(a)(2)(B)(iv).

And, as pertinent to the facts before us, on March 13, 2020, Chief Justice

Canady ordered, “all time periods involving the speedy trial procedure, in

criminal and juvenile court proceedings, are suspended from the close of

business on Friday, March 13, 2020, until the close of business on Monday,

March 30, 2020, or as provided by subsequent order.” In re: COVID-19

Emergency Procedures in the Florida State Courts, Fla. Admin. Order No.

AOSC20-13 (Fla. Mar. 13, 2020).2 The suspension was to “be applied 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. 3[d] DCA 1993),” and was

subsequently extended until “[ninety] days after the Chief Justice has

approved the certification of a chief judge of a judicial circuit that the circuit

or a county within the circuit has transitioned to Phase [Three]” of court

reopening.

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