FRANCIS BONILLA, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Petitioner sought a writ of prohibition claiming a violation of Florida's speedy trial rule when felony DUI with serious bodily injury and leaving the scene charges were filed after a misdemeanor DUI charge was nolle prossed. The court denied the petition, holding that felony charges arising from the same criminal episode may be filed within the felony speedy trial period despite the prior nolle prosequi of misdemeanor charges.
A felony DUI with serious bodily injury charge may be filed within the felony speedy trial period even though a misdemeanor DUI charge arising from the same criminal episode had been previously nolle prossed. Rule 3.191(o) does not vitiate the recapture period, and when the trial court holds a timely hearing on the notice of expiration of speedy trial and schedules trial within the recapture period, the defendant is not entitled to discharge.
[1] A felony charge arising from the same criminal episode as a previously nolle prosequied misdemeanor charge may be filed within the felony speedy trial period.
[2] A nolle prosequi of a misdemeanor charge does not necessarily vitiate the recapture period for a subsequently filed felony charge arising from the same criminal episode.
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Join FLexlaw to unlock all legal intelligence“a felony DUI with serious bodily injury charge may be filed within the felony speedy trial period, even though a misdemeanor DUI charge arising from the same criminal episode had been previously nolle 'prosequied”
Statement of the controlling legal principle from Nesworthy v. State that resolves the core issue of whether felony charges can be filed after misdemeanor nolle prosequi
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Join FLexlaw to unlock all legal intelligencePetitioner was charged by notice to appear with misdemeanor DUI on July 17, 2010. The State nolle prossed the misdemeanor charge, then filed felony DU…
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Petitioner seeks a writ of prohibition based upon an alleged violation of the speedy trial rule. We deny the petition.
Petitioner alleges that he was charged, by notice to appear, with a misdemeanor DUI violation on July 17, 2010. The State subsequently nolle prosequied the misdemeanor charge. On October 25, 2010, the State filed the felony charge of DUI with serious bodily injury, and, by amended information filed on November 12, 2010, added the felony charge of leaving the scene of an accident with injury. The felony charges arose from the same criminal episode as the nolle prosequied misdemeanor charge.
On January 21, 2011, Petitioner filed a notice of expiration of speedy trial and motion for discharge. Petitioner asserted that speedy trial had expired and that no recapture period was available because the misdemeanor charges had been nolle pro-sequied, relying on Florida Rule of Criminal Procedure 3.191(o). The trial court agreed with Petitioner regarding the leaving the scene charge filed on November 12, 2010, but denied Petitioner’s motion regarding the DUI with serious bodily injury charge. The trial court reasoned that the DUI with serious bodily injury charge was filed within the misdemeanor speedy trial period (to which the trial judge added the recapture period, which he included in his computation), but that the leaving the scene charge was untimely because it was outside this time period.
Although the trial judge’s reasoning was in error, he reached the right result on the charge that is the subject of this petition. In fairness to the trial judge, the parties *1234failed to favor him with the dispositive authority on this point. In Nesworthy v. State, 648 So.2d 259 (Fla. 5th DCA 1994), we held that a felony DUI with serious bodily injury charge may be filed within the felony speedy trial period, even though a misdemeanor DUI charge arising from the same criminal episode had been previously nolle 'prosequied,. In so holding, we specifically rejected the very same contention made by Petitioner here — that rule 3.191(o) vitiated the recapture period. Our decision in Nesworthy was expressly approved by our high court in State v. Woodruff, 676 So.2d 975, 978 (Fla.1996).1
Here, both of the felony charges were filed within 175 days of Petitioner’s arrest. When Petitioner filed the notice of expiration of speedy trial, the State was entitled to the benefit of the recapture window. Because the trial court held a timely hearing on the notice and scheduled trial within the recapture period, Petitioner was not entitled to discharge.2
PETITION DENIED.
MONACO, C.J, TORPY and COHEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Denice Mercer, 112 So. 3d 523 (Fla. 2d DCA 2013)…e 3.191, that notwithstanding the speedy trial status of any previously filed misdemeanor, a felony may be charged and the defendant brought to trial within the speedy trial time frames applicable to felonies.” Id. at 260; see also Bonilla v. State, 62 So. 3d 1233 (Fla. 5th DCA 2011). And Nesworthy has been cited for this proposition with approval by the supreme court. See State v. Woodruff, 676 So. 2d 975, 978 (Fla.1996). Thus, contrary to the circuit court’s ruling, the State in this case had until the exp…
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State v. Rodrick Thomas (Fla. 4th DCA 2025)
Authorities Cited
- State v. Woodruff, 676 So. 2d 975 (Fla. 1996)
- Nesworthy v. State, 648 So. 2d 259 (Fla. 5th DCA 1994)