IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
THE STATE OF
BERNARD BRADY, Case No: CRC064539CFAWS
Appellee. Lower No: 057796BATWS
Michael D. Kenny, Esq.
Wm. Newt Hudson, Esq.
ORDER AND OPINION
This is an appeal by the state from an order of the county court discharging the defendant on speedy trial grounds from a misdemeanor charge of driving under the influence. This Court affirms the decision of the trial court.
The defendant was involved in a motor vehicle accident and on October 7, 2005. He was arrested and charged with a misdemeanor DUI in county court case number 057796SBATWS, and was arrested on a complaint/affidavit for possession of a controlled substance which was assigned felony circuit court case number 0505120CFAWS. On October 18, 2005, the defense filed a notice of appearance, entry of plea of not guilty and a request for a jury trial, as well as a separate notice of discovery, in the felony circuit court case. On January 12, 2006, the State filed a two count information against the defendant, charging count one as possession of a controlled substance without a prescription, a third degree felony, and count two, misdemeanor driving under the influence.
On January 23, 2006, the defendant filed a notice of expiration of speedy trial in the county court, county case number 057796BATWS. The state responded by filing a notice of hearing in the felony circuit case number 0505120CFAWS. A calendar call was held on defendant’s notice of expiration of speedy trial on January 27, 2007, in the circuit court on case 055120CFAWS.
On February 2, 2006, defense counsel moved to dismiss count II of the information filed in circuit court. On February 6, the court denied the motion to dismiss based upon Florida Rule of Criminal Procedure 3.191. Defense counsel advised the circuit court of his intention to file a petition for writ of prohibition directed to Count II. After a recess, defense counsel prepared a written motion to continue the trial so that the defendant could pursue his petition for writ of prohibition. Thereafter, the circuit court conferred directly with the defendant regarding the speedy trial issues and the circuit court made a finding “that speedy trial is waived on both counts I and II.” The judge then continued the circuit court trial on the two count felony information in case number 055120CFAWS3. 
On March 24, 2006, the Second District Court of Appeal issued its order granting the defendant’s petition for writ of prohibition prohibiting the circuit court from exercising any further jurisdiction over the defendant under count II of the felony information filed in the circuit court case. An opinion followed, in which the Court specifically held that since “ . . . neither the State nor the defense filed a motion to consolidate prior to the expiration of the ninety-day speedy trial time period, the county court was never divested of jurisdiction over the misdemeanor DUI charge, and the circuit court never properly obtained jurisdiction over that charge.” Brady at 662. The Second District pointed out that the decision did not affect the pending County case number 057796SBATWS.
There were then two hearings on the defendant’s motion for discharge held in county court case number 057796BATWS before the Honorable Senior Judge Kirby Sullivan, one on June 20, 2006 and one on August 14, 2006. After argument, the judge found “the county court was never the best jurisdiction over the misdemeanor DUI charge and the circuit court never properly obtained jurisdiction over that charge. Okay, I’m going to grant the motion for discharge.” This Court affirms the decision of the trial court.
In this case, the state
filed the two count information in the circuit court after the expiration of
the misdemeanor speedy trial time period. As the Second District Court of
Appeal noted in its decision, “. . .a misdemeanor charge cannot be revived by
consolidating or joining it with a felony charge after the time for speedy
trial runs.” (citing Alvarez v. State,
791 So. 2d 574, 575 (
It is therefore,
ORDERED AND ADJUDGED that the decision of the trial court is AFFIRMED.
DONE AND ORDERED in Chambers at New Port Richey,
Primary Appellate Judge
Daniel D. Diskey
Copies furnished to:
Judge Kirby Sullivan
Michael D. Kenny, Esq.
Wm. Newt Hudson, Esq.
County Court Judges