GINGER BUSH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ginger Bush was arrested for misdemeanor DUI in December 2003 but not brought to trial within the required 90-day speedy trial window. When the State upgraded the charge to a felony after the speedy trial deadline had expired, the trial court denied Bush's motion to discharge based on the speedy trial violation. The appellate court reversed, holding that the felony upgrade does not circumvent speedy trial protections that attached to the original misdemeanor charge.
The court reversed the trial court's denial of Bush's motion to discharge, holding that Bush was entitled to be discharged based on a speedy trial violation. The upgrade from misdemeanor to felony does not circumvent the speedy trial protections that attached to the original misdemeanor charge.
[1] When a state nolle prosses a misdemeanor charge and subsequently files a felony charge based on the same conduct, the speedy trial period applicable to the felony charge…
[2] A defendant is entitled to discharge for a speedy trial violation if the state fails to provide notice of refiled charges within the applicable speedy trial period, there…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In this Felony DUI case, which was originally filed as a misdemeanor, we are called upon to address whether the lower court erred in denying a defense motion to discharge Appellant based on a speedy trial violation. Concluding that Appellant was entitled to be discharged, we reverse.”
Establishes the core issue and the court's determination that Bush was entitled to discharge based on speedy trial violation.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBush was arrested on December 19, 2003, for misdemeanor DUI. She filed a Notice of Expiration of Speedy Trial Time on March 18, 2004, asserting she ha…
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TORPY, J.
In this Felony DUI case, which was originally filed as a misdemeanor, we are called upon to address whether the lower court erred in denying a defense motion to discharge Appellant based on a speedy trial violation. Concluding that Appellant was entitled to be discharged, we reverse.
On the evening of December 19, 2003, Appellant was arrested and issued a citation for misdemeanor driving under the influence. On March 18, 2004, she filed a Notice of Expiration of Speedy Trial Time, asserting that she had not been brought to trial within 90 days as required for a misdemeanor under the Speedy Trial Rule, Florida Rule of Criminal Procedure 3.191. The county court heard argument on the motion on March 25, 2004. At the hearing, the prosecutor stated that he was filing a felony DUI charge that day. The court entered an order stating: “Per Assistant State Attorney Case Upgraded to Felony.” However, despite the representation of the prosecutor, the felony information was not filed that day. In fact, the information was not filed until April 7, 2004.
In the meantime, on April 2, 2004, fifteen days after filing her Notice of Expiration, Appellant filed a motion for discharge in the county court. On May 6, 2004, the State filed a Nolle Prosequi in the county court with the following notation: “Driving under the influence misdemeanor DUI charge only. Pending felony DUI is not nolle prosequi.” After a hearing on May 19, 2004, the misdemeanor DUI was discharged.
On May 24, 2004, Appellant filed a motion for dismissal of the felony DUI case. By order rendered on June 25, 2004, the circuit court denied Appellant’s motion. The court ruled that, although the misdemeanor DUI case had been discharged, that discharge did not bar prosecution for the felony DUI offense.
Thereafter, Appellant entered a plea of no contest to felony DUI, reserving her right to appeal the speedy trial issue. This appeal timely followed.
We determine that the facts in this case are indistinguishable from those presented to our sister court in Lovelace v. State,
1 906 So. 2d 1258 (Fla. 4th DCA), review granted, 917 So. 2d 195 (Fla.2005), and review dismissed, 928 So. 2d 1176 (Fla.2006). Based on the fourth district’s analysis, which we approve, the judgment and sentence are reversed.
REVERSED.
PLEUS, C.J. and PALMER, J., concur. . The trial judge; in his defense, did not have the benefit of Lovelace at the time of his ruling. Although it was released prior to the filing of the briefs in this appeal, both counsel tailed to cite Lovelace in their briefs or by supplemental authority.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- The Florida Bar v. Brown, 917 So. 2d 195 (Fla. 2005)
- Lovelace v. State, 906 So. 2d 1258 (Fla. 4th DCA 2005)
- State v. Lovelace, 928 So. 2d 1176 (Fla. 2006)