Third District Court of Appeal
State of Florida
Opinion filed April 10, 2024.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D23-1702
Lower Tribunal Nos. AH7AWXE, AH7AXME, AH7AX0E, AH7DXRE,
AH7AWYE, AH7DXPE, AH7CXJE
________________
Melissa Patino,
Petitioner,
vs.
The State of Florida,
Respondent.
A Case of Original Jurisdiction – Prohibition.
Luke Newman, P.A., and Luke Newman (Tallahassee), for petitioner.
Ashley Moody, Attorney General, and Kayla Heather McNab, Assistant
Attorney General, for respondent.
Before EMAS, LINDSEY and GORDO, JJ.
EMAS, J.
ON STATE’S MOTION FOR CLARIFICATION 1
We grant the State’s motion for clarification, withdraw the previous
opinion, and issue the following in its place.
INTRODUCTION
In this petition for writ of prohibition, we are called upon to determine
whether Florida Rule of Criminal Procedure 3.191(m)—which provides for a
90-day speedy trial period where the defendant’s “trial has been delayed by
an appeal by the state or the defendant”—applies when a defendant facing
criminal charges files a petition for writ of prohibition with the appellate court.
We hold that even if Patino’s prior petition for writ of prohibition (in 3D23-
1017) could be considered an “appeal” for purposes of rule 3.191(m), the 90-
day speedy trial period provided by that rule is nevertheless inapplicable
1
Following issuance of our opinion on February 28, 2024, the State moved
for clarification, pointing out that the opinion incorrectly referenced a 15-day
recapture period under Florida Rule of Criminal Procedure 3.191(p)(3). The
State is correct that, during the COVID-19 pandemic, the Florida Supreme
Court increased the length of the recapture period from 15 days to 30 days,
see In re COVID-19 Health and Safety Protocols and Emergency
Operational Measures for Florida Appellate and Trial Courts, Fla. Admin.
Order AOSC21-17, Amend. 1, at 25-26 (July 29, 2021), and that 30-day
recapture period remained in effect during the relevant time periods in the
instant case. See In re COVID-19 Administrative Orders, Fla. Admin. Order
No. AOSC23-25, at 2-3 (April 27, 2023). The State also acknowledged that
this correction does not affect the analysis or result of this opinion.
Nevertheless, in the interest of accuracy, we withdraw our previous opinion
and issue this corrected opinion in its place.
2
because Patino’s trial was not “delayed” by that appeal. We therefore grant
the instant petition, vacate the order denying Patino’s motion for final
discharge and remand with directions to grant final discharge of Patino from
the misdemeanor traffic offenses.
FACTUAL BACKGROUND
Melissa Patino was arrested on January 15, 2023, for the felony
offense of leaving the scene of an accident with injuries, as well as three
misdemeanor offenses: one charge of driving under the influence, and two
counts of driving under the influence causing property damage. On her
felony arraignment date in circuit court (February 17, 2023) the State
announced it was taking “no action,” declining to file formal charges for the
felony offense, leaving the three misdemeanor offenses to proceed in county
court.
Relevant for our purposes, on April 18, 2023, Patino filed in county
court a Motion for Final Discharge pursuant to Florida Rule of Criminal
Procedure 3.191, contending that: 1) ninety-one days had elapsed since she
had been taken into custody; 2) the State had filed no formal charging
document for the two misdemeanor offenses; 3) the speedy-trial period
expired; 4) the State was not entitled to the 30-day recapture period; and 5)
3
Patino was not required to file a notice of expiration before seeking final
discharge because no formal charging document had been filed. 2
The trial court denied the motion for discharge, finding that Patino had
in fact been formally charged, by uniform traffic citation,3 with the criminal
2
Under Florida Rule of Criminal Procedure 3.191(p), a defendant charged
with a misdemeanor must be brought to trial within 90 days (within 175 days
for a felony) of being taken into custody. If not brought to trial within that
time, a defendant may not seek final discharge unless she first files a Notice
of Expiration of Speedy Trial Time, triggering a recapture period within which
the court must bring the defendant to trial. If the defendant is not brought to
trial within that time (through no fault of the defendant) the defendant is
entitled to be “forever discharged from the crime.” See Fla. R. Crim. P.
3.191(p)(3).
However, if the State fails to file formal charges against the defendant within
the 90-day (or, for a felony, 175-day) period, the defendant can seek final
discharge without first filing the Notice of Expiration, which ordinarily would
trigger the recapture period within which to bring the defendant to trial. See
State v. Williams, 791 So. 2d 1088 (Fla. 2001). Here, however, because
Patino had been formally charged with the misdemeanor offenses, see infra
note 3 and accompanying text, she was not entitled to seek final discharge
without first filing a Notice of Expiration of Speedy Trial Time as required by
rule 3.191(p)(2). The trial court correctly denied Patino’s motion for
discharge.
Though the history of this case is provided for context, we note that the
Florida Supreme Court has recently proposed amendments to rule 3.191(a)
(Speedy Trial without Demand), which if adopted would, among other
changes, 1) increase the length of the recapture period from 15 days to 30
days; and 2) require a defendant to file a notice of expiration of speedy trial
time (and would provide the State with the benefit of the recapture period)
even if no formal charge has been filed. See In Re: Amends. to Fla. R. Crim.
P. 3.191, SC2022-1123.
3
Florida Rule of Traffic Court 6.165(a) provides:
4
traffic offenses, and thus, Patino was required to file a “Notice of Expiration
of Speedy Trial Time” as required by the rule 3.191(p), which would trigger
the recapture period within which to bring Patino to trial. Only after the filing
of that notice—and the expiration of the recapture period—would Patino
have been entitled to seek final discharge.
On June 6, 2023, Patino filed her first petition for writ of prohibition with
this court, seeking review of the trial court’s order denying Patino’s motion
for final discharge. On June 8, we ordered the State to file a response, but
this court did not issue a show cause order or otherwise stay the proceedings
in the trial court. On June 16, the State filed its response to Patino’s petition
and, one week later, Patino filed her reply to the State’s response. On July
7, 2023 (thirty-one days after the petition was filed), this court issued an order
denying Patino’s petition for writ of prohibition. That order read in pertinent
Uniform Traffic Citation. All prosecutions for criminal traffic
offenses by law enforcement officers shall be by uniform traffic
citation as provided for in section 316.650, Florida Statutes, or
other applicable statutes, or by affidavit, information, or
indictment as provided for in the Florida Rules of Criminal
Procedure. If prosecution is by affidavit, information, or
indictment, a uniform traffic citation shall be prepared by the
arresting officer at the direction of the prosecutor or, in the
absence of the arresting officer, by the prosecutor and submitted
to the department.
5
part: “Petitioner was charged by citation/arrest form with misdemeanor
crimes. Petitioner never filed a notice of expiration that could have triggered
discharge under Florida Rule of Criminal Procedure 3.191(a).” Importantly,
it is undisputed that the trial court proceedings were neither stayed nor
delayed as a result of, or during the pendency of, Patino’s petition.
Following this court’s order denying Patino’s petition, further
proceedings were held in the trial court and, on August 4, 2023, Patino filed
a Notice of Expiration of Speedy Trial Time pursuant to rule 3.191(p). The
filing of a valid notice of expiration triggers the recapture period within which
the trial court is required to bring the defendant to trial. At a subsequent
hearing held on the notice of expiration, the trial court granted a State-
charged continuance; however, no trial date was set. When Patino was not
brought to trial within the recapture period, she filed a motion for final
discharge (as well as an amended and renewed motion for final discharge).
The trial court denied the motions for final discharge, finding that
Patino’s prior petition for writ of prohibition (filed with this court following the
denial of the first motion for discharge) constituted an “appeal” under rule
3.191(m), thereby triggering a new 90-day speedy trial period following this
court’s issuance of its order denying Patino’s petition. The trial court
determined that because the new 90-day speedy trial period had not yet
6
expired, Patino was not entitled to final discharge. The trial court calculated
that that new 90-day speedy trial period would expire on September 4,
denied the motion for final discharge and set the case for trial thereafter.
Patino filed this second petition for writ of prohibition, asserting that the
trial court erred in denying her motion for discharge because rule 3.191(m)—
which provides for a new 90-day speedy trial period within which to bring a
defendant to trial when that defendant’s “trial has been delayed by an appeal
by the state or the defendant”—is inapplicable to the prior petition for writ of
prohibition because such a petition is not an “appeal.” In the alternative,
Patino contends that, even if the petition is an “appeal” within the meaning
of rule 3.191(m), the 90-day speedy trial period remains inapplicable
because the petition proceeding did not cause any delay in her trial.
ANALYSIS AND DISCUSSION
Rule 3.191(m) provides in pertinent part:
Effect of Mistrial; Appeal; Order of New Trial. A person who is
to be tried again or whose trial has been delayed by an appeal
by the state or the defendant shall be brought to trial within
90 days from the date of declaration of a mistrial by the trial
court, the date of an order by the trial court granting a new trial,
the date of an order by the trial court granting a motion in arrest
of judgment, or the date of receipt by the trial court of a
mandate, order, or notice of whatever form from a reviewing
court that makes possible a new trial for the defendant,
whichever is last in time. If a defendant is not brought to trial
7
within the prescribed time periods, the defendant shall be entitled
to the appropriate remedy as set forth in subdivision (p).
(Emphasis added).
The primary question raised below was whether a petition for writ of
prohibition filed by a defendant constituted an “appeal” for purposes of rule
3.191(m), thereby triggering commencement of a 90-day speedy trial period
once the trial court received a mandate, order, or notice of whatever form
from a reviewing court. However, this matter is more readily resolved by
addressing the alternative argument posed by Patino: even if it could be said
that a petition for writ of prohibition filed by a defendant constitutes an
“appeal” under rule 3.191(m), the plain and unambiguous language of the
rule provides that the 90-day speedy trial period is not triggered unless the
defendant’s “trial has been delayed by an appeal by the state or the
defendant.” Id. We reject the position, advanced by the State at oral
argument, that we treat these words as mere surplusage. A fundamental
canon of statutory construction is that courts must endeavor to give meaning
to each word and phrase contained in a statute or rule, and “courts should
avoid readings that would render part of a statute meaningless.” Unruh v.
State, 669 So. 2d 242, 245 (Fla. 1996) (quoting Forsythe v. Longboat Key
Beach Erosion Control Dist., 604 So. 2d 452, 456 (Fla.1992)); United States
8
v. Butler, 297 U.S. 1, 65 (1936) (“These words cannot be meaningless, else
they would not have been used.”). See also Barco v. School Bd. of Pinellas
Cnty., 975 So. 2d 1116, 1121 (Fla. 2008) (we apply the same canons of
construction to court rules as those applied to statutes); Antonin Scalia &
Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 174 (West
2012) (“Surplusage Canon: If possible, every word and every provision is to
be given effect (verba cum effectu sunt accipienda). None should be ignored.
None should needlessly be given an interpretation that causes it to duplicate
another provision or to have no consequence.”)
Further, the Florida Supreme Court has emphasized that rule 3.191(m)
applies by its terms to an appeal that causes delay in the trial. See, e.g.,
State v. Rohm, 645 So. 2d 968, 968 (Fla. 1994) (“We hold that the 90-day
speedy trial period provided in Florida Rule of Criminal Procedure 3.191(m)
applies whenever a trial has been delayed by appeal.”) (emphasis added).
We thus turn back to the specific provision in rule 3.191(m):
A person who is to be tried again or whose trial has been
delayed by an appeal by the state or the defendant shall be
brought to trial within 90 days from the date of declaration of
a mistrial by the trial court, the date of an order by the trial court
granting a new trial, the date of an order by the trial court granting
a motion in arrest of judgment, or the date of receipt by the trial
court of a mandate, order, or notice of whatever form from a
reviewing court . . . .
9
(Emphasis added).
Even if reasonable minds can differ on the proper meaning of “appeal,”
the same cannot be said on the proper meaning of “whose trial has been
delayed.” Applying the ordinary meaning to this plain and unambiguous
phrase, we conclude that the 90-day speedy trial period under rule 3.191(m)
was not triggered in the instant case because even if the earlier petition for
writ of prohibition was an “appeal,” it is undisputed that Patino’s “trial has
[not] been delayed by” that appeal. 4
4
Patino contends that this court previously held that an original proceeding,
such as prohibition or certiorari, is not an “appeal” for purposes of rule 3.191
and therefore the 90-day speedy trial period would not be triggered upon
conclusion of such an appellate proceeding. See, e.g., State v. Barreiro, 460
So. 2d 945, 947 (Fla. 3d DCA 1984) (certiorari review sought by State;
observing that “there is no authority or logical requirement for bringing
extraordinary reviews within the definition of. . . appeals” for purposes of rule
3.191(m)); State v. Dante, 467 So. 2d 744, 745 (Fla. 3d DCA 1985) (following
Barreiro and holding that the 90-day speedy trial period provided under rule
3.191(m) “is inapplicable to an original petition for a writ of certiorari filed in
this court because such a proceeding is not, in the language of the rule, an
‘appeal’”). See also Hochstrasser v. Demers, 491 So. 2d 1245, 1246 (Fla. 2d
DCA 1986) (citing Barreiro and Dante, and holding that “appeal” as used in
rule 3.191(m) “does not encompass petitions for extraordinary writs.”)
More recent opinions by the Fourth District have called our decisions into
question. See, e.g., Buhler v. State, 247 So. 3d 1, 4 (Fla. 4th DCA 2018)
(holding that, after the district court ruled on the State’s certiorari petition
seeking review of a discovery order, rule 3.191(m) applied to provide the trial
court ninety days within which to bring the defendant to trial); Frazier v. State,
761 So. 2d 337 (Fla. 4th DCA 1999). See also Nelson v. State, 414 So. 2d
10
In concluding that Patino’s trial was not delayed by the prohibition
proceeding, we first note that the filing of a petition for writ of prohibition does
not divest the trial court of jurisdiction and, absent a stay order or issuance
of an order to show cause, the trial court may continue proceedings during
the pendency of a prohibition proceeding. See Samuels v. Franz, 632 So. 2d
73, 74 n.3 (Fla. 2d DCA 1993); Allen v. State, 579 So. 2d 200 (Fla. 2d DCA
1991); Fla. R. App. P. 9.100(h). Absent the issuance of an order staying the
proceedings below, the trial court could have proceeded to trial while the
petition remained pending in this court. See Alonso v. State, 879 So. 2d 80
(Fla. 3d DCA 2004).
We further note that this court’s order directing the state to file a
response to Patino’s petition for prohibition did not stay the proceedings in
the trial court. A stay would have been effectuated if this court had instead
505, 508 (Fla. 1982) (interpreting a different provision of rule 3.191 providing
that a speedy trial period may be extended for exceptional circumstances,
including “for appeals by the state,” and construing that phrase to “include all
appellate applications made by the state.”)
In any event, we need not reach the question of whether a petition for writ of
prohibition filed by a defendant constitutes an “appeal” for purposes of rule
3.191(m)’s 90-day speedy trial period, since, as explained, it is undisputed
that Patino’s trial was not delayed by the earlier prohibition proceeding in this
court. We therefore leave this separate question for another day.
11
issued an order to show cause, as provided by Florida Rule of Appellate
Procedure 9.100(h):
Order to Show Cause. If the petition demonstrates a preliminary
basis for relief, a departure from the essential requirements of
law that will cause material injury for which there is no adequate
remedy by appeal, or that review of final administrative action
would not provide an adequate remedy, the court may issue an
order either directing the respondent to show cause, within
the time set by the court, why relief should not be granted
or directing the respondent to otherwise file, within the time
set by the court, a response to the petition. In prohibition
proceedings, the issuance of an order directing the
respondent to show cause will stay further proceedings in
the lower tribunal.
(Emphasis added).
The emphasized language above was added by the Florida Supreme
Court in 2015 to formalize the practice of appellate courts choosing to direct
the opposing party to file a response to the petition without imposing a stay
of the proceedings in the lower court. See In re Amendments to Florida
Rules of Appellate Procedure, 183 So. 3d 245 (Fla. 2014). The Court stated
that, in order “to continue to allow courts the discretion to request a response
to a petition for writ of prohibition without bringing the proceedings in the
lower tribunal to a halt,” the rule is amended so an appellate court may
choose to “either issue an order to show cause and stay the proceedings
12
below (in prohibition cases) or request a response, which would not stay the
proceedings.” Id. at 247.
Because this court did not issue an order to show cause or otherwise
impose a stay of the trial court proceedings during the pendency of the
petition, and because the trial court retained jurisdiction to proceed, the
petition for writ of prohibition did not delay Patino’s trial and the speedy trial
period continued to run during the pendency of the prohibition proceeding in
this court. 5 Under these circumstances, the speedy trial period had expired
by the time Patino filed her Notice of Expiration of Speedy Trial Time on
August 4, 2023. This notice triggered commencement of the 30-day
recapture period, during which the trial court was obligated to bring Patino to
trial. Because Patino was not brought to trial within that recapture period
(through no fault of Patino) her motion for final discharge was well-taken and
the trial court should have granted the motion and entered an order of final
discharge.
5
The State could have requested that the trial court proceed to trial or,
alternatively, could have sought an extension of the speedy trial period
pursuant to rule 3.191(i) or (l). The State did neither, and the trial court did
not abate, or otherwise delay, the proceedings during the pendency of the
petition in 3D23-1017.
13
CONCLUSION
We therefore grant the petition, issue the writ of prohibition, and
remand this cause to the trial court for entry of an order of final discharge of
Patino from the misdemeanor traffic offenses.
Petition granted.
14