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Speedy Trial Rule Puts Kibosh On Organized Scheme To Defraud Prosecution

Speedy Trial Rule Puts Kibosh On Organized Scheme To Defraud Prosecution

J.S.C. was arrested on August 7, 2009, in St. Lucie County for uttering a forged check (three counts), forgery (three counts), criminal use of personal identification (three counts), organized scheme to defraud, and grand theft. On September 14, 2009, the State filed an Information formally charging this Defendant with communication fraud – less than $300.00 and first degree petit theft – $100.00 up to $300.00 (two counts). The charges filed on arose out of the same circumstances as the charges for which J.S.C. was originally arrested. The original charges were dropped by the filing of a “No Information”.

Even though the defendant had correctly and timely provided address information to the St. Lucie County Clerk of Court, the “capias” (a type of arrest warrant for the new charges) was not served upon him until November 16, 2009. There was no evidence that either Office of State Attorney or the St. Lucie County Sheriff’s Office (SLCSO) made any effort to contact the defendant to advise him of the charges, until the defendant was arrested on November 16.

The Public Defender’s Office initially represented this defendant. The defendant was told that there was “no defense” to the charge, and that he should plead guilty, thereby receiving a substantial jail sentence.

J.S.C. located Jeffrey H. Garland via a web search and made an appointment on February 18, 2010. He formally retained Attorney Garland four days later. Attorney Garland, after reviewing the facts, immediately filed a motion to dismiss based upon a violation of speedy trial rights guaranteed under Florida Rule of Criminal Procedure 3.191(a).

The motion to dismiss alleged that speedy trial began to run upon the defendant’s initial arrest on August 7, 2009. The 90-day speedy trial period for misdemeanors (without a demand) ran on November 5, 2009. At the point that the misdemeanor speedy trial period ran, no State agency had made any effort to bring the case to trial, let alone to even notify the defendant of the pendency of a misdemeanor Information.

In filing a motion to dismiss a misdemeanor on speedy trial grounds, careful consideration should be given to whether the State might refile a felony charge due to the inability to prosecute the misdemeanor charge or charges. In this case, Attorney Garland verified that the 175-day period for bringing a felony to trial had also run on January 29, 2010. Because both the misdemeanor and felony speedy trial periods had run, there would have been no risk of the State refiling a felony charge or charges.

In this case, the Public Defender’s Office failed to notice the speedy trial issue. The Public Defender’s Office never moved to dismiss the charges for violation of the speedy trial rule. In fact, an Assistant Public Defender appeared at a docket call on February 16, 2010, and waived the defendant’s right to speedy trial.

Fortunately, Attorney Garland recognized that an accused cannot waive his right to speedy trial, when the right to discharge from prosecution has already been perfected. See Nelson v. State, 993 So.2d 1072, 1074 (Fla. 4th DCA 2008) (“A request for continuance after a speedy trial period has run, but before moving for discharge, does not effect a defendant’s right to demand his speedy trial rights.”); Jones v. State, 9 So.3d 1282 (Fla. 2nd DCA 2009) (accord).

As already noted, the defendant had truthfully and completely advised the Clerk of Court of his address – even after changing his address from the one given at the time of his initial arrest. Four days after his November 16, 2009 arrest on the misdemeanor capias, he received a postcard from the SLCSO. This postcard demonstrated that the SLCSO, and the State Attorney’s Office, were aware of his actual physical address. The postcard had been prepared for mailing after the defendant had already been arrested. The postcard was postmarked November 17, 2009. The postcard stated substantially as follows:

“In order to avoid physical arrest at your home or work, you must immediately bring this card with you to the St. Lucie County Jail, located at 900 Rock Road, Fort Pierce, Florida.

Please be prepared to post bond on the warrant number listed above. We accept credit cards”.

In this case, J.S.C. had no opportunity to file a notice of expiration of speedy trial period. He received no notice from the State or the SLCSO that charges might still be pending. In a similar situation, Puzio v. State, 969 So.2d 1197, 1201 (Fla. 1st DCA 2007), explained that the State would not have a right to the 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. Applying the principles set forth in State v. Agee, 622 So.2d 473 (Fla. 1993), and Genden v. Fuller, 648 So.2d 1183 (Fla. 1994), Puzio held that there would be no recapture period, because the State had failed to notify the accused of new charges, and that the accused “could not have known that he needed to file a notice of expiration”. Puzio explained that the defendant “was lulled into believing that the charges against him had been dropped”.

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 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 andfailing to notify defendant of the refiled 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 379; 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 rearrested on the felony DUI charge eight months later is immaterial to the running of the speedy trial time.”).

The speedy trial rule is considered to be “transactional”. It applies to all charges which have been made, or which could be made, arising out of a single transaction. See State v. Williams, 791 So.2d 1088, 1091 (Fla. 2001). In this case, J.S.C. was originally arrested for various charges, including organized scheme to defraud. An organized scheme to defraud can occur in many ways and incorporates many similar and, possibly, lesser charges. According to the arrest affidavit, the alleged scheme involved check forgeries on or about July 16, 2009, and lasted at least until the delivery of merchandise, under false pretenses, on or about July 31, 2009. The events and time period alleged in the August 7, 2009 arrest affidavit substantially encompass the charges and events set forth in all three counts of the misdemeanor information.

Attorney Garland argued that both the communication fraud and petit theft charges would be considered lesser included offenses to organized scheme to defraud and/or grand theft and, thus, time-barred.

In light of these circumstances, the State elected to nolle prosequi all charges just before the March 15, 2010 hearing on the motion to dismiss was to begin. Attorney Garland is seeking to expunge these arrests and, therefore, the name and case number are not provided.