Wednesday, May 14, 2008


Scott Saul said...

The scene is Broward!
I have a client that was arrested, and had charges filed, for a felony and corresponding misdemeanor.Without ever taking a continuance and 170 days into the case, the State nolle prossed the felony. Because the client did not want to close the misdemeanor, the State had the Judge transfer the misdemeanor to county court. It took the Clerk's Office 3 days to create a county court case number.The day after the nolle prosse, but before the creation of the county court case number, I filed a NOE. I put the citation number on the pleading. The County Clerk's Office refused to take it and mandated that it be filed in circuit court (which was the still existing case number).

After 15 days passed, I filed a motion for discharge and set the motion.The Broward Judge denied the motion and struck my NOE. Her reasons were because;1) She felt that I should have requested a supervisor in County Court and forced them to take the pleading at that level;2) She felt that it was underhanded to file the NOE before a county case number was created and
3) There exists an "administrative order" where all lawyers must cc the Judge on the filing of a NOE. You must give them a courtesy copy.This order is not posted anywhere but I did not comply with it.(Can an administrative order expand, clarify or distinguish an enacted Rule of Criminal procedure?)

I feel that her reasons are no good. However, my concern is 3.191 (f). Under that rule, if a misdemeanor is consolidated with a felony, the applicable speedy trial time is the felony one.
Sounds logical!

In my case, if the felony is nolle prossed leaving just the misdemeanor, does the speedy trial time revert to 90 days or does the misdemeanor enjoy the 175 day period since it started out in a felony information? Did my filing of the NOE before the 175 days make it a nullity under 3.191( f)? Does a misdemeanor always get felony speedy trial treatment if it's point of origin is in Circuit Court? I want to take a writ on the Judge's ruling yet not if 3.191(f) makes her (seemingly) erroneous ruling immaterial.
Instead of bashing lawyers and spreading gossip, this is what the blog should be for? What do y'all think?


Anonymous said...

felony bound down or nolle prossed and refiled as misdemeanor gets 90 days. File the writ. No administrative order can supercede a rule.

Anonymous said...

I believe 10:35 is right. Only other way to handle it is that you could have filed a Motion for Discharge, as the 90 days had already run, with no county charges filed. Therefore no NOE was needed.

Anonymous said...

See, 33 Fla. L. Weekly D1292a

Anonymous said...

Why wouldn't you just wait until the case was properly filed with a case number? Regardless of the rules, it looks like you were trying to circumvent the system for a quick nolle prosse, and your case would have been better served to wait for the case to be properly filed in front of a Judge.

Anonymous said...

Wrong. Scott loses because the misdemeanor was never nolle prossed and refiled. The felony was nolle prossed and the misdemeanor sent to county court.

Real question is why the prosecutors didn't work out the entire thing in circuit

PS----This is NOT the way to encourage prosecutors to get rid of weak felony cases. The prosecutor does the right thing and you file an NOE on him or her like this? Next time he or she will keep the case in circuit court. BAD CALL.

Anonymous said...

26 Fla. L. Weekly D1925b
Criminal law -- Prohibition -- Speedy trial -- Error to deny discharge on counts in information constituting misdemeanors where ninety-day speedy trial period applicable to misdemeanors had run before the information was filed -- Rule 3.191(f), which provides that misdemeanors consolidated with felonies are governed by speedy trial period applicable to felonies, may not be used to revive misdemeanor count that is filed after misdemeanor speedy trial period has run
FELIX ALVAREZ, Petitioner, v. STATE OF FLORIDA, Respondent. 4th District. Case No. 4D01-794. Opinion filed August 8, 2001.

Anonymous said...

Well done 8:22. Scott it was a nice try. I agree with you on the administrative order issue. It can not place upon the defendant a requirement not in the rule. It affects his substantive rights, not a procedural one.

However, you can not file an NOE on the misdemeanor attached to a felony before 180 days. Also a case number is essential to a proper filing, without one the clerk can return the pleading.

Anonymous said...

I think under 3.191(f), the misdemeanor was no longer "consolidated for disposition in circuit court" when the State asked the judge to transfer it to county.
As such, the misdemeanor rules should apply. 90 days.

It should have nothing to do with filing your pleading before the clerk 'created' a case number.

And you should go after the lousy Broward clerk's office for refusing to accept your pleading.

Anonymous said...

Since the misdemeanor was jpined together with the felony in circuit court, the circuit court still had jurisdiction over it. It would be the same situation as when the state announces a No Action on the felony count and files on the misdemeanor count at arraignment in circuit court and the state or the judge offers CTS on the misdemeanor and the circuit judge takes the plea right then and there.

Anonymous said...

Scott Saul needs someone to tell him what the law is? Unbelievable.

Anonymous said...

Hey, Did the research.

This is a blog, not Westlaw.

Anonymous said...

Are there really people that think Scott Saul is a good lawyer...I mean, other than Scott himself?

Anonymous said...

Hey Scott, with your fancy office and 21 years out of UM it is a crying shame you have to ask for advice. ever heard of legal research. i am sure in 10 minutes of t he annotated law for 3.191 a law student could have the answer.

Anonymous said...

I had a case filed in Judge Perez's division. There were four felonies and one misdemeanor. The judge dismissed the felonies on a 3.90(c)(4) motion.

The State refused to trabnsfer the misdemeanor (resisting w/out violence) case to County Court because they wanted somehow to refile. As we were then past the 80th day from arrest, I filed the 10 day notice.
We had a series of hearings before Judge Blake who was sitting in for the then vacant-seated divison. He pointed out to the State that the 14 day period was running. Three days before it ran, they filed in the County Court. Eight days later I moved for an order of dsischarge. Judge Bloom granted it, and the State acknowledged that that was a correct ruling.

Scott Saul said...

Hey 5/19/08 at 5:49 p.m.,

Thanx for being nice and understanding the positive use of this blog.

Please divulge the style on the case. So many things go unreported in county ct...hence the reason for my posting.

Your case is right on point and may make my writ more peruasive.

send to