County Criminal Court: Criminal Procedure – Speedy Trial – Amending charge from felony to misdemeanor was not abandoning prosecution for purposes of speedy trial. Petition for Prohibition denied. Peasley v. State, No. CRC 06-6 APANO, (Fla. 6th Cir.App.Ct. July 21, 2006).

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

RYAN PEASLEY

 

            Petitioner,

 

v.                                                                                                                                                                   Case No. CRC 06-6 APANO

UCN52200AP00006XXXXCR

STATE OF FLORIDA

 

            Respondent.

____________________________/

 

 

Opinion filed _________________.

 

Petition for writ of prohibition

seeking review of a decision of

the Pinellas County Court

County Judge Paul Levine

 

Bradford Kandzer, Esq.

Assistant Public Defender

 

Della Jensen, Esq.

Assistant State Attorney

 

ORDER AND OPINION

 

            (J. Morris)

 

            THIS MATTER is before the Court on the defendant, Ryan Peasley’s, Petition for Writ of Prohibition seeking review of a decision of the Pinellas County Court to deny his motion for discharge. The defendant claims that the trial court should have discharged him because the speedy trial time had expired. After reviewing the briefs and record, this Court affirms the decision of the trial court.

            The defendant was arrested for DUI, possession of paraphernalia, and possession of marijuana on June 25, 2005. A felony information was filed on July 15, 2005. When the State, however, subsequently learned from a lab report that the amount of marijuana only justified a misdemeanor charge, it certified the case to the Pinellas County Court and filed a three-count information charging the defendant with the misdemeanor crimes.  The defendant contends that the State was not entitled to the recapture period and that he is entitled to an immediate discharge because the speedy trial time had expired before the misdemeanor information had been filed.

In Clifton v. State, 905 So.2d 172 (Fla. 5th DCA 2005) the court held that to resolve these types of cases two things must be considered: (1) whether there has been an abandonment or cessation of the prosecution; and (2) if not, whether the amendment causes prejudice to the defendant.

The defendant’s claim that the State abandoned the prosecution is mistaken. The State did not enter a nolle prosequi. What it did was amend the charge from a felony down to a misdemeanor.[1] This was no abandonment of the prosecution. The fact that, because of changing circumstances, the charge was later amended from a felony to a misdemeanor does not in any way demonstrate that the State ceased to prosecute the matter.

Since there was no abandonment of the prosecution, the State was permitted to amend its information as long as it did not prejudice the defendant. See State v. Erickson, 852 So.2d 289 (Fla. 5th DCA 2003). The circumstances in the case at bar did not prejudice the defendant. He knew he was being prosecuted for possessing marijuana. Only the amount of marijuana alleged to have been possessed, and thus the severity of the punishment, changed. This is unlike the situation in Clifton where the State introduced a completely new charge after the speedy trial time had expired.

Therefore, the State was entitled to amend its information without losing its right to use the recapture period if the defendant had filed a notice of expiration of speedy trial. Immediate discharge was not a remedy available to the defendant under these circumstances. Accordingly, the lower court was correct to deny the defendant’s motion for discharge; and this Court affirms that denial and denies the defendant’s petition.

            IT IS THEREFORE ORDERED that the decision of the trial court is affirmed and the Petition is denied.

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of July, 2006.

                                                                        _________________________________

                                                                                                David A. Demers

                                                                                    Circuit Judge, Appellate Division

 

 

 

                                                                        __________________________________

                                                                                                Robert J. Morris, Jr.

                                                                                    Circuit Judge, Appellate Division

 

 

 

 

                                                                        ___________________________________

                                                                                                Irene H. Sullivan

                                                                                    Circuit Judge, Appellate Division

 

cc:        State Attorney

 

            Public Defender

 

            Judge Levine



[1] Technically, the State did not file a document entitled “amended information” in the county court. However, the effect of its certification of the charges from the circuit court to the county court, together with the information filed in the county court, was to amend the information.