The 19th Circuit State Attorney’s office has a practice of not notifying defendants, their lawyers, or the misdemeanor court when the State chooses to “upfile” a misdemeanor DWLS charge to a felony. It is not known why the State persists in this practice, which Attorney Garland has observed over the course of many years. Common sense suggests that the State would either want to give notice in order to avoid a speedy trial dismissal or to have the defendant arrested on the “capias” for the more serious felony charge.
In this case, D.U. was issued a citation for DWLS on July 1, 2011. The citation constituted a notice to appear for a criminal violation, because it required her to appear for arraignment on a specific date, to-wit: July 19, 2011, at 8:30 A.M., before Judge Nelson at the St. Lucie County Courthouse. See Williams v. State, 946 So.2d 1163, 1165 (Fla. 1st DCA 2006) (speedy trial begins when served with notice to appear).
D.U. appeared for her arraignment on the scheduled date. Judge Nelson instructed D.U. to return for a docket call on August 24, 2011.
On July 28, 2011, the State “upfiled” a superseding information charging felony DWLS. However, the State did not notify D.U. or her public defender that the charge had been upfiled. The State merely obtained the issuance of a capias, which is a special type of arrest warrant when an information has already been filed.
The State did not seek leave of court to transfer the misdemeanor case to, or consolidate the misdemeanor with, the new circuit court proceeding for the upfiled felony. Since the State did not choose to do either of these things, the county court was not automatically divested of jurisdiction when “misdemeanor and felony charges arising out of the same circumstances are filed in both county and circuit courts”. State v. Coble, 704 So.2d 197, 199 (Fla. 4th DCA 1998). One party or the other must file such a motion to divest the county court of jurisdiction. State v. Woodruff, 676 So.2d 975, 977, note 2 (Fla. 1996); Hernandez v. State, 985 So.2d 1115 (Fla. 3rd DCA 2008) (accord). In this case, D.U. had no opportunity to file such a motion, because she was never put on notice of the upfiled felony.
On August 24, 2011, D.U. returned to Judge Nelson’s misdemeanor courtroom as previously instructed. She was told by someone, possibly her public defender, that her case had been “dropped” with no further information being provided. Although there was an active capias for D.U.’s arrest, based upon the superseding felony information, the capias was not served upon D.U. when she appeared for court. Attorney Garland would later argue that D.U. was lulled into believing that the State had abandoned the misdemeanor DWLS charge.
D.U. received no further notices from the St. Lucie County Clerk of Court or the State Attorney’s office, or the St. Lucie County Sheriff’s office regarding court dates, charges or trials. The 90-day period for bringing a defendant to trial on a misdemeanor charge (without demand) ran on Monday, October 3, 2011. The State made no effort to notify D.U. of the upfiled felony charge during this period of time and made no effort to bring her to trial on the misdemeanor charge within the required 90-day period.
D.U. was ultimately arrested on the felony capias on November 15, 2012. She later retained Attorney Jeffrey Garland to represent her in the felony matter. Attorney Garland filed a Motion to Dismiss, alleging that his client’s misdemeanor speedy trial rights had been violated, and that the felony DWLS charge must be dismissed, because it was simply an enhanced version of the same criminal charge.
The Motion was heard by Circuit Judge Lawrence M. Mirman on May 16, 2012. Judge Mirman agreed that, under the special facts of this case, D.U.’s misdemeanor speedy trial rights had been violated and that dismissal of the felony DWLS charge was required.
LEGAL ISSUES IN THIS CASE
A major issue in this case was whether D.U. was required to file a notice of expiration of the speedy trial period. If she had been required to file such a notice, the State would have been entitled to a 15-day “recapture period” during which to bring her case to trial. The defense relied, in part, upon Puzio v. State, 969 So.2d 1197, 1201 (Fla. 1st DCA 2007), which explained that the State would not have a right to a 15-day “recapture period”, under Rule 3.191(p), when it failed to give notice that new charges arising out of the same transaction had been filed. Puzio held that the accused “could not have known that he needed to file a notice of expiration” and was “lulled into believing that the charges against him had been dropped”. See Thompson v. State, 1 So.3d 1107, 1110-1111 (Fla. 4th DCA 2009) (State was entitled to 15-day recapture period where petitioner’s counsel “was given a express and specific notice on the record that the charge had been ‘upfiled’…”); State v. Ingraham, 43 So.3d 164, 167 (Fla. 4th DCA 2010) (State was entitled to 15-day recapture period where State attempted to notify defendant of the refiled charge before the speedy trial period expired).
The Fourth District considered a similar circumstance in State v. Morris, 662 So.2d 378 (Fla. 4th DCA 1995). Morris filed a demand for speedy trial, entitling him to have his trial commence no more than a total of 65 days later. The State elected to nolle prosse all charges against Morris after the demand for speedy trial had been filed, but before the expiration of the 65-day period of time. The State re-filed the cocaine trafficking charge the very next day. The defendant was not re-arrested on the re-filed charge until after the 65-day period of time had expired. The Fourth District concluded that the State was not entitled to a 15-day recapture period under Rule 3.191(p)(3), because it had failed to notify the defendant that charges had been re-filed:
[U]nder these circumstances, the State, by nol prossing and failing to notify the defendant of the re-filed charges or take him back into custody within the [remaining] 50 days, deprived defendant of his right to have his trial commence no later than 65 days from his April 12 demand.
Id at 370; see Dedolchow v. State, 675 So.2d 955, 956 (Fla. 4th DCA 1996) (“[T]he fact that the State released petitioner from custody when it entered the ‘no file’ on the misdemeanor charge of DUI and that he was not returned to custody – through no fault of his own – until he was arrested on the felony DUI eight months later is immaterial to the running of the speedy trial time.”).
Dismissal of the felony DWLS charge was required, because it is simply the same charge as the misdemeanor DWLS, except that it is enhanced by the existence of prior convictions. In an analagous situation, the State was precluded from prosecuting a felony DUI where the misdemeanor DUI was dismissed due to a speedy trial violation. See Lovelace v. State, 906 So.2d 1258, 1258- 1259 (Fla. 4th DCA 2005) (violation of speedy trial rule for a misdemeanor DUI charge precludes felony DUI charge based on same incident and prior DUI convictions).
WHAT TO MAKE OF ALL THIS?
State prosecutors ought to implement procedures to give due process notice to defendants, or their lawyers, of the pendency of upfiled felony charges. In the alternative, prosecutors could establish procedures to have the defendants arrested on the upfiled felony charge when the defendant appears for a regularly scheduled misdemeanor court proceeding. As it stands now, Clerk’s offices routinely strike the misdemeanor cases from the misdemeanor dockets when charges are upfiled. This is truly a situation which has the potential for a windfall to those defendants who are aware of their speedy trial rights and prepared to protect them. Such defendants may well obtain dismissals, as D.U. did in this case. Prosecutors could easily prevent these situations from arising, but it is Attorney Garland’s experience that such simple solutions are unlikely. Therefore, defendants should know their rights and take appropriate action, such as moving to dismiss upfiled felony charges which violate the misdemeanor speedy trial rule.