IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA
STATE OF FLORIDA,
                                      NOT FINAL UNTIL TIME EXPIRES TO
      Appellant,                      FILE MOTION FOR REHEARING AND
                                      DISPOSITION THEREOF IF FILED
v.
                                      CASE NO. 1D13-5494
DONALD WILSON,

      Appellee.

_____________________________/

Opinion filed May 12, 2015.

An appeal from the Circuit Court for Hamilton County.
Andrew J. Decker, III, Judge.

Pamela Jo Bondi, Attorney General, and Justin D. Chapman, Assistant Attorney
General, Tallahassee, for Appellant.

Justin Wade Blow, Lakewood, Colorado, for Appellee.




RAY, J.


      The State of Florida appeals a speedy trial discharge granted to Donald

Wilson after a defense-moved continuance pushed his trial date beyond the speedy

trial period and recapture window of Florida Rule of Criminal Procedure 3.191.

The trial court charged the continuance to the State upon finding that the defense

could not be prepared for trial within the speedy trial deadline due to substantial,
prejudicial discovery violations by the State. We reverse because the record does

not establish that the severe sanction of dismissal is warranted.

                                          I.

        Wilson was arrested for lewd or lascivious molestation on December 12,

2012, and filed a notice of intent to participate in discovery five days later. He was

charged on February 5, 2013, and the State filed its initial discovery exhibit on

April 15, 2013. The discovery exhibit was late and incomplete. With discovery still

outstanding, the default speedy trial period under Rule 3.191(a) ended on June 5,

2013.

        On June 12, 2013, the defense filed a written notice of expiration of speedy

trial time and orally requested a hearing to address discovery violations, notifying

the court that the State was still providing discovery at that late date. This notice

triggered a requirement that the court hold a hearing within five days and, if

appropriate based on Rule 3.191 and representations made at the hearing, schedule

a trial within ten days of the hearing. Fla. R. Crim. P. 3.191(a), (p). The court

scheduled trial to begin within this time frame, known as the recapture window,1

understanding that the discovery issues would be taken up at a hearing on June 17.

In the meantime, on June 14, Wilson filed a motion for a thirty-day continuance to

be charged to the State.

1
  State v. S.A., 

, 507 (Fla. 2014) (holding that the recapture window
is calculated as two separate five- and ten-day time periods).
                                           2
      After the June 17 hearing, with days remaining in the recapture window, the

court granted Wilson’s motion, continuing the case to an unspecified date beyond

the recapture window, and charged the continuance to the State. The court

concluded that the State’s delay in providing many discovery items, while

unintentional, was inexcusable and substantially prejudiced Wilson’s ability to

prepare for a timely trial. The court recognized that its decision would result in a

speedy trial discharge but found, without analyzing any alternative remedies, that it

had no other choice. Some months later, Wilson moved for a speedy trial

discharge, which was granted.

                                         II.

      Before granting a State-charged continuance to a date beyond the recapture

window, a court should consider three principles. First, a defense-moved

continuance should not be charged to the State unless the State has violated a rule.

State v. Naveira, 

, 309 (Fla. 2004) (holding that when the State filed

charges and produced all its discovery on the last day of the speedy trial period, the

fact that the defendant needed more than fifteen days to use the discovery did not

justify charging a continuance to the State). Second, if any remedy will “provide

relief to the defendant and permit the State to move forward with its case within

the speedy trial and recapture periods provided by the rules,” the trial court must

select it. State v. Valdez, 

, 187 (Fla. 2d DCA 2010); see also Pura v.

                                          3
State, 

, 440 (Fla. 5th DCA 2001) (holding that lesser sanctions must

be used to avoid punishing the public); cf. Richardson v. State, 

,

774 (Fla. 1971) (noting that the court’s sanction authority is not “intended to

furnish a defendant with a procedural device to escape justice”). Third, a defendant

seeking to take advantage of the speedy trial rule must have acted “in a manner

consistent with a desire to secure [a] speedy trial,” and not simply a speedy

discharge. 

; see McKenney v. State, 

, 953

(Fla. 3d DCA 2007) (recognizing that a continuance is partially chargeable to both

sides when it is necessitated by State discovery violations that could have been

corrected earlier upon a proper motion by the defense); State v. Gilliam, 

, 130 (Fla. 2d DCA 2004) (holding a speedy trial discharge improper where the

defense would not have been ready for trial regardless of the discovery violations).

Application of these principles strikes the proper balance between the defendant’s

discovery rights and the public’s interest in the prosecution of criminal cases, while

also ensuring that the State’s discovery violations, and not gamesmanship, are truly

the reason the defendant has not received a trial within the speedy trial limits

provided under Rule 3.191.

                                         III.

      Here, the record supports the majority of the court’s findings of discovery

violations by the State. It does not, however, sufficiently support the court’s

                                          4
decision to cure these violations with a State-charged continuance to a date beyond

the recapture window.

      As an initial matter, the trial court reversibly erred when it failed to consider

whether any prejudice resulting from the State’s violations could have been cured

with a shorter continuance to a date within the recapture window or perhaps by

exclusion of evidence or testimony. See State v. Guzman, 

, 1264

(Fla. 3d DCA 1997) (“any prejudice to the defendant’s preparation could have

been cured by a short continuance to a date still within the speedy trial time”);

(noting exclusion of evidence as an example of a lesser

sanction); Fla. R. Crim. P. 3.220(b)(3), (n) (providing that a court may strike a

witness or exclude evidence not timely disclosed).

      Moreover, the trial court’s inquiry into whether the discovery violations

resulted in prejudice was lacking given the circumstances of this case. For

example, the trial court did not ask Wilson’s counsel what efforts he made to put

the new discovery to use in the time between its receipt and the hearing on the

motion for a continuance, or whether the time remaining in the recapture period

would be sufficient. 

(“As long as discovery is provided in

time to allow the defendant to utilize it prior to the expiration of speedy trial,

including the recapture period, there is no prejudice.”). In addition, once the court

rejected the State’s claim not to know the identities of two juvenile witnesses,

                                          5
whom the State had identified in its discovery exhibit only by initials, it could have

ordered the State to find those names and provide them promptly. See Von

Waldner v. State, 

, 1062 (Fla. 5th DCA 2003) (noting trial court’s

requirement of State to provide witnesses because of previous discovery

violations). Finally, the court could have required Wilson’s counsel to prepare for

trial with the new information, pending a final decision as to whether the State’s

violations prevented sufficient preparation. An examination of the situation closer

to the end of the recapture window would have allowed the trial court to determine

the extent of the prejudice and inquire as to the contents of the new discovery so

that it could determine whether the exclusion of evidence would appropriately

address the violations. See State v. Nelson, 

, 576 (Fla. 2010) (noting

that “the recapture period illustrates the principle that a defendant has a right to

speedy trial, not a right to speedy discharge without trial”). This type of inquiry is

exacting, but it is necessary due to the great cost to the public that is occasioned by

a speedy trial discharge. Cf. 

(“ ‘[T]he court’s

discretion can be properly exercised only after the court has made an adequate

inquiry into all of the surrounding circumstances.’ ” (quoting Ramirez v. State, 

, 747 (Fla. 4th DCA 1970))).

      To a lesser extent, we are concerned that the trial court did not weigh

Wilson’s failure to seek an order compelling the State to provide missing discovery

                                          6
before the expiration of the speedy trial period. While Wilson’s counsel was not

aware of all the violations until after that time, the State’s failure to provide certain

names and addresses was clear from the face of the initial discovery exhibit, which

the State provided almost two months before Wilson filed the notice. The

defendant cannot properly declare, through a notice of expiration of speedy trial

time, that he is ready for trial while knowing that substantial discovery violations

have been ongoing for several weeks and not seeking judicial intervention

beforehand. See 

; Rodriguez v. State, 

,

1264 (Fla. 3d DCA 2006) (failure of defense to file a motion to compel discovery

before a joint continuance waived speedy trial).

      Ultimately, because the record does not show that a State-charged

continuance outside the recapture window was required, we reverse and remand

for reinstatement of the criminal action in the circuit court.

LEWIS, CJ., and BENTON, JJ., CONCUR.




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