The State of Florida v. Kevin Beach

• Court: District Court of Appeal of Florida
• Decided: August 14, 2024
• Docket: 2023-1444
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed August 14, 2024. Not final until disposition of timely filed motion for rehearing.

No. 3D23-1444 Lower Tribunal No. B22-16855

The State of Florida, Appellant,

vs.

Kevin Beach, Appellee.

An Appeal from the County Court for Miami-Dade County, Marcus Bach Armas, Judge.

Ashley Moody, Attorney General, and Ivy R. Ginsberg, Assistant Attorney General, for appellant.

Kevin Beach, in proper person.

Before LOGUE, C.J., and FERNANDEZ and BOKOR, JJ. PER CURIAM.

The trial court, concluding that the State added a new charge to the

amended information after the expiration of the speedy trial period,

discharged the defendant. The State of Florida appealed. Because the

amended information contained no new charge, nor did it prejudice the

defendant, we reverse and remand.

BACKGROUND

On July 24, 2022, an individual identified as “Tyrell Beach,” was

arrested for the alleged choking of a victim at a laundromat. The State filed

the information on August 22, 2022, charging Beach with one count of

misdemeanor battery. Specifically, the State alleged that Beach unlawfully

committed battery on the victim, “by actually and intentionally touching or

striking said person against said person’s will and/or causing bodily harm, to

wit: CAUSED HER TO LOSE CONSCIOUSNESS FOR A MOMENT, in

violation of s. 784.03, Fla. Stat.”

Beach, through his appointed counsel, filed a notice of expiration of

speedy trial, which was well-taken at a February 21, 2023, hearing. Trial was

set for March 7, 2023. The day prior, Beach’s counsel filed a motion to

withdraw, and Beach filed a pro se motion to dismiss1 because his legal

1 The court denied Beach’s motion to dismiss. 2 name was Kevin (Tyrell) Beach, and the State charged an individual named

Tyrell Beach. Thus, the court granted the motion to withdraw and reset trial

for a week to provide Beach with time to familiarize himself with court

procedures.

Thereafter, the State filed an amended information on March 7, 2023,

correcting the defendant’s name and modifying the language of the charge.

The State now alleged that Beach committed battery “by actually and

intentionally touching or striking said person against said person’s will, in

A day prior to the newly scheduled trial, Beach filed seven pre-trial

motions, including a motion to discharge because the State amended the

information after the expiration of the speedy trial period. At a March 14, 2023

hearing, the court informed Beach that it would either strike these motions

as untimely or grant Beach a continuance to permit the State time to respond.

After initially insisting on going to trial, Beach requested a continuance “under

duress.” The recapture period expired on March 19, 2023.2

2 The recapture period was extended from ten days to thirty days per AOSC21-17, Amendment 3(II)(E)(8)(b)(i-ii). 3 On April 13, 2023, Beach filed a notice of expiration of speedy trial

rights. The court granted a joint continuance on May 9, 2023.3 Following a

hearing on the motion to discharge, the court granted the motion, finding that

the State forfeited the recapture period by amending the information after the

expiration of Beach’s speedy trial rights. Specifically, the court found that the

construction of the initial information would lead any reasonable person to

conclude that a charge was made pursuant to section 784.03(1)(a)2, Florida

Statutes (2023).4 Thus, in the court’s view, when the State amended the

information to omit reference to section 784.03(1)(a)2 and solely referenced

section 784.03(1)(a)1, the State effectively added a new charge that

prejudiced Beach.

ANALYSIS

The instant case presents a mixed standard of review. The trial court’s

determination that the amended information “violated the intent and effect of

3 Prior to the May 9th continuance, Beach filed two motions to disqualify the presiding judge and a motion to disqualify the subsequently appointed judge. Further, Beach appealed the denial of his motion to dismiss, as well as petitioned for a writ of habeas corpus. See Beach v. State, Case No. 3D23- 0747. 4 Specifically, in analyzing the initial information, the trial court found that the “factual allegations following ‘to wit’ would lead any reasonable person to conclude that the charge alleged was based on the specific allegations set forth following ‘to wit,’ and thus, a charge made pursuant to Fla. Stat. 784.03(1)(a)(2).” 4 the speedy trial rule and resulted in prejudice to the defendant” is reviewed

under an abuse of discretion standard. State v. Conroy, 118 So. 3d 305, 308

(Fla. 3d DCA 2013). We review the trial court’s interpretation of the speedy

trial rule de novo. Id. at 309 (citing Saia Motor Freight Line, Inc. v. Reid, 930

So. 2d 598, 599 (Fla. 2006)).

Florida Rule of Criminal Procedure 3.191(b) provides that a defendant

“shall have the right to demand a trial within 60 days, by filing with the court

a separate pleading entitled ‘Demand for Speedy Trial,’ and serving a copy

on the prosecuting authority.” If trial does not commence within such time

frame, a defendant may file a “Notice of Expiration of Speedy Trial Time.”

Fla. R. Crim. P. 3.191(p)(2). Such notice triggers the recapture period, where

the court must hold a hearing within five days to determine if the defendant

waived his speedy trial rights, and if not, trial must occur within thirty days.

Fla. R. Crim. P. 3.191(p)(3); AOSC21-17, Amendment 3(II)(E)(8)(b)(i-ii).

While the State maintains the right to amend an information outside

the speedy trial period,5 it “may not circumvent the intent and effect of the

5 Beach primarily argues that discharge was warranted because the State failed to charge Beach under the correct name. However, amending the information to correct his name was warranted. See Fla. R. Crim P. 3.140(j) (“An information on which the defendant is to be tried that charges an offense may be amended on the motion of the prosecuting attorney or defendant at any time prior to trial because of formal defects.”). 5 speedy trial rule by lying in wait until the speedy trial time expires and then

amending an existing information in such a way that results in the levying of

new charges” that arise from the same facts and circumstances from the

initial charge. Pezzo v. State, 903 So. 2d 960, 962 (Fla. 1st DCA 2005)

(emphasis in original). Thus, the central question becomes (1) “whether there

has been an abandonment or cessation of the prosecution previously

initiated,” and (2) “if not, whether the amendment causes prejudice to the

defendant.” State v. Clifton, 905 So. 2d 172, 178 (Fla. 5th DCA 2005). We

address each issue in turn.6

First, the State did not abandon its prosecution of the misdemeanor

battery charge. Rather, the amended information merely restated, and

clarified, the same battery charge contained in the initial information. See

Clifton, 905 So. 2d at 174. In Clifton, the initial information alleged four counts

of arson and was amended to include an additional arson charge arising out

of the same incident. Id. The court concluded that the four arson counts

contained in the initial information should not be dismissed, because the

State re-alleged the counts in the amended information, thus indicating that

6 The trial court erroneously applies State v. Williams, 791 So. 2d 1088 (Fla. 2001), to the present case. There, the Court held that the State could not file charges for the first time after the expiration of speedy trial. Id. at 1091. However, as the court explained in Clifton, an amended information is not instantly analogous and requires analysis of the questions outlined above. 6 there was no intent to abandon prosecution of the original four counts. Id. at

179.

Similarly, here, the amended information re-alleged the same

reference to section 784.03, Florida Statutes (2023). The amended

information solely removed reference to section 784.03(1)(a)2but maintained

the identical reference to section 784.03(1)(a)1 contained in the first

information, indicating that there was no intent to abandon prosecution of the

battery charge on that theory. Thus, it was error for the trial court to find that

the amended information alleged a new charge.

Next, Beach suffered no prejudice by the amendment. Prejudice to the

defendant depends “on the totality of the circumstances” and “the time of the

amendment.” See Thach v. State, 342 So. 3d 620, 624 (Fla. 2021). A

defendant is not prejudiced by an amended information that clarifies an

already existing charge and does not substantively change the elements of

the charged offense. Compare Conroy, 118 So. 3d at 311 (concluding that

an amended information prejudiced the defendant where, on the day of trial,

“the State added two new, previously unfiled charges . . . exposing [the

defendant] to possible additional sentences of life in prison and two twenty-

year minimum mandatory terms”), with Gerome v. State, 306 So. 3d 314, 317

(Fla. 3d DCA 2020) (concluding that an amended information caused no

7 prejudice to the defendant where the amendment did not alter the elements

necessary to prove the existing charge, and the State had revealed and

discussed the alternative theory since the inception of the case). Here,

contrary to Conroy where the State added charges and exposed the

defendant to a potentially harsher sentence, the State did not add any new

charge nor was there any change in what the State needed to prove. See

118 So. 3d at 311.

In analyzing the initial information, the trial court found that putting

factual allegations following “to wit” would lead a reasonable person to

conclude that the charge alleged was based on section 784.03(1)(a)2, which

was referenced immediately prior. This conclusion is error, as Beach was at

least on notice that the State could prove battery under section

784.03(1)(a)1. Further, trial had not commenced, providing Beach with

ample time to prepare a defense under this alternative theory. See Gerome,

306 So. 3d at 317. Accordingly, the trial court abused its discretion in finding

that the State forfeited the recapture period with its amendment.7

7 The State correctly raises that even if the amended information was improper, the correct remedy under Conroy would be to reinstate the initial information. See, e.g., Conroy, 118 So. 3d at 311 (remanding case with instructions to reinstate prior information); see also State v. Carpenter, 899 So. 2d 1176, 1182 (Fla. 3d DCA 2005) (“Dismissal of an information is . . . an extreme sanction that should be used with caution, and only when a lesser sanction would not achieve the desired result.”). 8 Finally, we address whether Beach waived his right to a speedy trial.

“[A] defendant waives his or her right to a speedy trial by being unavailable

for trial or by taking actions that render the failure to hold a trial attributable

to the accused or his or her counsel.” Wallace v. State, 189 So. 3d 1022,

1026 (Fla. 3d DCA 2016); see also Fla. R. Crim. P. 3.191(j)(2) (“If trial of the

accused does not commence within the periods of time established by this

rule, a pending motion for discharge shall be granted by the court unless . .

. the failure to hold trial is attributable to the accused . . . or their counsel[.]”).

Further, a defense continuance or joint continuance is a waiver of speedy

trial rights. See State v. Burnett, 870 So. 2d 858 (Fla. 3d DCA 2004); State

v. Lopez, 982 So. 2d 1270 (Fla. 3d DCA 2008).

Here, many of the delays in the case were attributable to Beach. Beach

filed numerous pre-trial motions below, many on the eve of trial. Further, on

March 14, 2023, the court granted Beach a defense continuance to review

the pro se motions after his counsel withdrew, and the court later granted a

joint continuance because Beach sought for this Court to resolve his appeals.

See Hill v. State, 467 So. 2d 695, 696 (Fla. 1985) (concluding that there

was a waiver of speedy trial protections where defense counsel withdrew

at the pre-trial conference, causing the court to reset the case); Lopez, 982

So. 2d at 1272. Thus, Beach waived his speedy trial rights.

9 CONCLUSION

The trial court abused its discretion in finding that the amended

information contained a new charge and prejudiced Beach. Further, Beach

waived his right to a speedy trial by delaying the case with numerous

untimely motions and appeals to this Court. Accordingly, we reverse and

remand for further proceedings consistent with this opinion.

Reversed and remanded.