NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
STATE OF FLORIDA, )
)
Appellant/Cross-Appellee, )
)
v. ) Case No. 2D12-4482
)
TOMAS BURGESS, )
)
Appellee/Cross-Appellant. )
___________________________________)
Opinion filed September 24, 2014.
Appeal from the Circuit Court for
Hillsborough County; Debra Behnke,
Judge.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Elba Caridad Martin-
Schomaker, Assistant Attorney General,
Tampa, for Appellant/Cross-Appellee.
Tomas Burgess, pro se.
KHOUZAM, Judge.
The State of Florida appeals, and Tomas Burgess cross-appeals, an order
granting in part and denying in part Burgess's motion for discharge. The order
dismissed three of six pending charges based on the trial court's conclusion that
Burgess had not waived his right to a speedy trial by the time the State filed a
superseding information. But because the record reflects that Burgess did waive his
right to a speedy trial before the superseding information was filed, we reverse the
portion of the order dismissing the pending charges. We find no merit in Burgess's
cross-appeal and therefore affirm the denial of the motion to discharge as to the
remaining counts.
Burgess was arrested on March 26, 2010, and was originally charged by
information on April 22, 2010. That information charged Burgess with three counts of
burglary of unoccupied areas (one dwelling, one structure, and one conveyance) and
two counts of grand theft. A detailed review of Burgess's pretrial hearings is not
necessary; suffice it to say that Burgess became dissatisfied with appointed counsel's
representation and repeatedly requested that his attorney be discharged.
During a pretrial hearing on October 14, 2010, the trial court found that
Burgess had given up his right to be represented by counsel after conducting both a
Nelson 1 and a Faretta 2 inquiry. Immediately thereafter, the following exchange
occurred:
Court: In this case, [appointed counsel] will stay on as
standby counsel and—do you need some time to prepare
your trial for Monday?
Burgess: [no audible response]
Court: Are you ready to go on Monday?
Burgess: No.
Court: All right. How much time do you need to prepare
your case?
Burgess: I don't know how to answer that. I guess I'm going
to have to learn about the law—
Court: Okay.
1Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973).
2Faretta v. California, 422 U.S. 806 (1975).
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Burgess: —since I'm [indiscernible]. I guess I'm going to
have to learn and I don't know how long that's going to take.
Court: We'll set your case over until December the 9th at
8:30. You can let me know then.
At the December hearing, the court set another pretrial hearing for February 22, 2011,
and set trial for February 28, 2011.
On February 21, 2011, the State filed a superseding information. The
superseding information added one count and augmented two of the existing counts.
The added count (labeled as count one of the superseding information) was a second
burglary of an unoccupied dwelling alleged to have occurred during the same criminal
episode. The augmented counts (counts three and six of the superseding information)
contained additional details clarifying the victims and items stolen in the two already-
existing grand theft counts. The remaining three counts were retained from the original
information and were realleged verbatim.
On February 28, 2011, the morning scheduled for trial, Burgess again told
the court he was not ready, and the case was again continued. During the following
eighteen months Burgess filed a variety of motions, some of which addressed the
speedy trial rule. But the record does not reflect that a demand for speedy trial was
ever filed, either pro se or on Burgess's behalf.
On August 8, 2012, Burgess filed a pro se motion for discharge, arguing
that the superseding information filed February 21, 2011, violated his right to a speedy
trial. The trial court entered an order on August 9, 2012, granting the motion in part and
denying in part. In the order, the trial court concluded that although Burgess
"eventually" waived his right to speedy trial on some unspecified date, he had not yet
done so by the time the State filed its superseding information on February 21, 2011.
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Based on its speedy trial analysis, the trial court further concluded 1) that the new count
in the superseding information arose from the same set of facts underlying the original
information, and 2) that the two amended grand theft counts were "sufficiently different"
to result in prejudice to Burgess. Without any further explanation, the order dismissed
counts one, three, and six of the superseding information. The trial court denied the
motion as to the three counts which were identical in both charging documents. From
this order, the State appealed and Burgess cross-appealed.
Florida Rule of Criminal Procedure 3.191(a) provides that a person
accused of a felony generally has the right to be brought to trial within 175 days of
arrest. The rule, however, is not self-executing and requires affirmative action on behalf
of the defendant to avail himself or herself of the proper remedies. State v. Nelson, 26
So. 3d 570, 574 (Fla. 2010). "Florida's speedy trial rule is a procedural protection and,
except for the right to due process under the rule, does not reach constitutional
dimension." State v. Naveira, 873 So. 2d 300, 308 (Fla. 2004) (quoting State v. Bivona,
496 So. 2d 130, 133 (Fla. 1986)) (internal quotations omitted).
Generally, a defense request for a continuance waives the right to speedy
trial. Banks v. State, 691 So. 2d 490, 491 (Fla. 4th DCA 1997). And "[a]ny defense
request to postpone a case for any period of time, whatever called, constitutes a motion
for a continuance waiving speedy trial rule rights." Blackstock v. Newman, 461 So. 2d
1021, 1022 (Fla. 3d DCA 1985). This is true even for continuances requested after the
expiration of the speedy trial period, so long as the defendant has not yet filed a notice
of expiration of speedy trial time. Nelson, 26 So. 3d at 580 (holding that the recapture
period provisions of rule 3.191 compel the conclusion that "a continuance that is
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chargeable to the defense and made after the expiration of the speedy trial period but
before a defendant files a notice of expiration waives a defendant's speedy trial rights
under the default period of the rule"). Once waived, the defendant can "start the clock
running again," but only by invoking a demand for speedy trial under rule 3.191(b). See
Atkins v. State, 785 So. 2d 1219, 1220 (Fla. 4th DCA 2001). Interpretation of rule 3.191
is a legal question subject to de novo review. See Nelson, 26 So. 3d at 573-74.
Here, the trial court erred as a matter of law when it determined that
Burgess had not waived his right to a speedy trial before February 21, 2011. The
transcript of the October 14, 2010, hearing demonstrates that Burgess unequivocally
stated he was not ready for his imminent trial and needed more time to prepare. This
statement constituted a motion for continuance and operated as a waiver of Burgess's
right to a speedy trial. 3 Although the 175-day window following Burgess's March 26,
2010, arrest had already expired in September 2010, no notice of expiration of speedy
trial was filed before the continuance. Consequently, "when [Burgess] requested a
post-expiration continuance . . . without filing a notice of expiration, he necessarily
waived his right to a speedy trial within the default period." Nelson, 26 So. 3d at 579.
Because Burgess waived his right to a speedy trial prior to the date the
State filed the superseding information, we must now determine whether the new
information resulted in prejudice to Burgess. "It is well-settled that the state may amend
its information pre-trial or even during trial, either as to substantive or non-substantive
matters, unless the defendant is prejudiced thereby." State v. Clifton, 905 So. 2d 172,
3Our focus on the October 14, 2010, dialogue should not be read to
address whether any other conduct would independently constitute a waiver of that
right; rather, the existence of even one such waiver during the relevant period is
sufficient to demonstrate the error in the trial court's analysis.
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178 (Fla. 5th DCA 2005) (quoting State v. Erickson, 852 So. 2d 289, 291 (Fla. 5th DCA
2003)) (internal quotations omitted). Where the defendant is afforded an adequate
opportunity to investigate the evidence and prepare a defense, an amendment to the
information is not improper even where the amendment adds a new charge with
different elements of proof. Cf. Peevey v. State, 820 So. 2d 422, 424 (Fla. 4th DCA
2002) (observing that, although an amendment which added a new victim and a new
offense to the information on the day of trial was not permissible, "[h]ad the State added
the charge earlier, the Defendant could have investigated what evidence the State could
present and formulate a defense").
Here, it is difficult to imagine that the superseding information
impermissibly prejudiced Burgess. As noted above, the superseding information added
a new charge and details to existing charges. But, given that the superseding
information was filed more than seventeen months before the motion to discharge—
without a trial occurring on these charges—Burgess cannot claim prejudice because he
has had more than ample time to investigate the evidence and formulate a defense.
The trial court's conclusion that the superseding information impermissibly prejudiced
Burgess simply cannot stand.
Consequently, the trial court erred in dismissing the counts. Accordingly,
we reverse the part of the order that dismisses counts one, three, and six of the
superseding information. We affirm the remainder of the order denying the motion to
discharge as to the three counts that were not amended in the superseding information.
On remand, the trial court shall reinstate counts one, three, and six in the superseding
information.
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Affirmed in part; reversed in part; case remanded.
LaROSE and BLACK, JJ., Concur.
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