Filing # 116066573 E-Filed 11/03/2020 01:48:06 PM
IN THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, STATE OF FLORIDA
APPEAL NO:
IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA
CASE NO: 16-2019-CF-013111 TREVON MARQUISE SMITH Petitioner,
vs.
STATE OF FLORIDA, Respondent. I
APPENDIX TO EMERGENCY PETITION A WRIT OF PROHIBITION
Filed on behalf of Petitioner
CHARLIE COFER PUBLIC DEFENDER
ELIZABETH HOGAN WEBB ASSISTANT PUBLIC DEFENDER 407 N. LAURA STREET JACKSONVILLE, FL 32202 (904)255-4727
RECEIVED, 11/03/2020 01:48:37 PM, Clerk, First District Court of Appeal FLORIDA BAR NO. 0853089 EMAIL: [email protected] ATTORNEY FOR PETITIONER
1 INDEX
COVER SHEET ...... 1
INDEX ...... 2
APPENDIX I: ORDER STRIKING AS MOOT THE NOTICE OF EXPIRATION OF SPEEDY TRIAL AND MOTION FOR DISCHARGE AS TO COUNT II IN THE AMENDED INFORMATION DATED AUGUST 31, 2020 ...... 3
APPENDIX II: INFORMATION ...... 6
APPENDIX III: AMENDED INFORMATION ...... 9
APPENDIX IV NOTICE OF EXPIRATION OF SPEEDY TRIAL AND MOTION FOR DISCHARGE AS TO COUNT II IN THE AMENDED INFORMATION DATED AUGUST 31, 2020 .. 13
APPENDIX V: TRANSCRIPTS OF OOCTOBER 2, 2020 PROCEEDINGS. 28
APPENDIX VI: gTH CIRCUIT ORDER FOR CASE 01-2020-CF-372 ...... 55
CERTIFICATE OF SERVICE ...... 66
2 APPENDIX I: ORDER STRIKING AS MOOT THE NOTICE OF EXPIRATION OF SPEEDY TRIAL AND MOTION FOR DISCHARGE AS TO COUNT II IN THE AMENDED INFORMATION DATED AUGUST 31, 2020
3 IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA
CASE: 16-2019-CF-013111-AXXX-MA
DIVISION: CR-D (Circuit Court)
ST A TE OF FLORIDA vs.
TREVON MARQUISE SMITH, DEFENDANT
ORDER
THIS CAUSE COMING ON BEFORE THE COURT UPON THE C8)DEFENDANT'S 0STATE'S
NOTICE OF EXPIRATION OF SPEEDY TRIAL AND MOTION FOR DISCHARGE AS TO COUNT
II IN THE AMENDED INFORMATION DATED AUGUST 31, 2020
FILED HEREIN ON THE 21 8T DAY OF SEPTEMBER , 2020, AND THE COURT HAVING HEARD
ARGUMENTS OF THE STATE'S ATTORNEY AND OF COUNSEL FOR DEFENSE, AND BEING FULLY
ADVISED IN THE PREMISES, IT IS THEREUPON
ORDERED AND ADJUDGED THAT THE AFORESAID MOTION SHALL BE AND THE SAME
IS HEREBY: (~J' Lil~"
DONE AND ORDERED IN OPEN COURT AT JACKSONVILLE, DUVAL COUNTY, FLORIDA, THIS 2. r) DAY OF u cli)L~r , 2020.
FILED MARK BORELLO OCT O2 Ill' Circuit Judge
4 Filing# 113653515 E-Filed 09/21/2020 08:53:48 AM
lN THE CIRCUIT COURT, FOURTH JUDlCIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA
STATE OF FLORIDA,
v.
TREVON M. SMITH
Defendant. CASE NO.: 2019-CF-0131 l I ------ii DCV1Sl0N: CR-D
NOTICE OF EXPIRATION OF SPEEDY TRIAL AND MOTION FOR DISCHARGE AS TO COUNT II IN THE AMENDED INFORMATION, DATED AUGUST 31, 2020
TREVON M. SMITH by and through his undersigned Assistant Public Defender, pursuunt to Fla.R.Crim.P. 3.19 l(u) und (p), moves this Honoruble Court to discharge Mr. Smith from prosecution of these matters as it pertains to Ct 11 of the Amended Information, dated August 31, 2020. As grounds lo support this Motion, Mr. Smith would further allege the following: FACTS: I. Mr. Smith wus arrested on December 30, 2019 for Armed Carjacking with u
Fireann/W capon.
2. On January 28, 2020, an Information was filed. The State filed a one count Information
for Armed Robbery.
3. The allegations are lhat one the vehicle in question was found it was located. it was found
with firearms contained therein. The knowledge of the firearms within the \lehicle and the
request for testing was done on the date or clients arrest on December 30, 2019. Those
firearms were swabbed for DNA and the results of the FDLE findings were known to the
State after February 27, 2020 (us wns dated in the FDLE report). (Report Attached us
Exhibit# I).
lCCEPTED: DUYAL COUNTY, RONNIE FUSSELL, CLERK,5 09/22/2020 02:39: 14 PM APPENDIX II: INFORMATION
6 Filing# 102364800 E-Filed 01/28/2020 03:45:52 PM
S.A. CASE NO.: 20CF000663AD IN THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT IN AND FOR DUVAL COUNTY, FLORIDA
STATE OF FLORIDA Fall Term, in the year two thousand nineteen
vs. CLERK NO.: 162019CF013111A
TREVON MARQUISE SMITH DIVISION: CRD
INFORMATION FOR:
1) ARMED ROBBERY
IN THE NAME OF AND BY AUTHORITY OF THE STATE OF FLORIDA, MELISSA W. NELSON, State Attorney for the Fourth Judicial Circuit of the State of Florida, in and for Duval County, charges that:
COUNT 1
TREVON MARQUISE SMITH on December 24, 2019, in the County of Duval and the State of Florida, did unlawfully by force, violence, assault, or putting in fear, take money or other property, to-wit: vehicle, the property of Jeffrey Simmons, from the person or custody of Lamar Louis Wright, with the intent to permanently or temporarily deprive Jeffrey Simmons of the money or other property, and in the course of committing said robbery, carried a firearm, to-wit: handgun, contrary to the provisions of Section 812.13(2)(a}, Florida Statutes.
By: . Assistant State A torney Fourth Judicial Circuit of Florida, in and for Duval County
STATE OF FLORIDA COUNTY OF DUVAL GARRETT HILL BAR# 85965 Personally appeared before me, , Assistant State Attorney, for the Fourth Judicial Circuit of the State of Florida, in and for Duval County, who is personally known to me, and who being first duly sworn, says that the allegations as set forth in the foregoing information are based upon facts that have been sworn to as true, and which, if true, would constitute the offense therein charged, and that this prosecution is instituted in good faith, and hereby certifies that testimony under oath has been received from the material witness(es) for the offense. Sworn to and subscribed before me this ~
RONNIE FUSSELL, Clerk of the Circuit Court, Fourth Judicial nty, and Clerk of the County Court, In and For Duval County, Florida.
FILED THIS ______BY DEPUTY CLERK:....,(_.._~....o_ae_·~-ul=r-"'~--~--=;;;...... _- Dkt 2019-033922 AD February 5, 2020 Ext. S S/W DOB 06/19/1998 Race Black Sex Male
MCL S812.13(2)(a), F1,PBL NO.(S):
~~ 7 ACCEPTED: DUVAL COUNTY, RONNIE FUSSELL, CLERK, 01/28/2020 08:19:19 PM STATE ATTORNEY'S OFFICE FOURTH JUDICIAL CIRCUIT OF FLORIDA
CHARGING NOTICE
TO: CIRCUIT COURT CLERK DATE: January 28, 2020
DIVISION: CRD
RE: STATE OF FLORIDA S.A. CASE NO.: 20CF000663AD
vs. CLERK NO.: 162019CF013111A
TREVON MARQUISE SMITH ARREST NO.: 2019-033922
CCR NO.: 2019-0873277
ORIGINAL CHARGE(S}:
1) 812133F, CARJACKING (ARMED WITH DEADLY WEAPON), S812.133(1), 812.133(2)(a), F1 ,PBL, DCF
FILED CHARGE(S):
1) 81213C, ARMED ROBBERY, S812.13(2)(a), F1,PBL
The State Attorney's Office, through the Assistant State Attorney listed below, is filing only the charges listed above. Any Original Charges that are not listed as Filed Charges have either been dropped or changed from the Arrest and Booking Report.
Brittany Lynne Johnson Assistant State Attorney
Note: This Notice relates to this arrest and booking only and in no way effects any other charges this defendant may have pending.
Cir_Charging Notice Page 1 of 1 8 APPENDIX III: AMENDED INFORMATION
9 S.A. CASE NO. : 20CF000663AD IN THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT IN AND FOR DUVAL COUNTY, FLORIDA
STATE OF FLORIDA Spring Term, in the year two thousand twenty vs. CLERK NO.: 162019CF013111A TREVON MARQUISE SMITH DIVISION: CRD
AMENDED INFORMATION FOR:
1) ARMED ROBBERY 2) POSSESSION OF A FIREARM BY A CONVICTED FELON
IN THE NAME OF AND BY AUTHORITY OF THE STATE OF FLORIDA, MELISSA W. NELSON, State Attorney for the Fourth Judicial Circuit of the State of Florida, in and for Duval County, charges that:
COUNT 1
TREVON MARQUISE SMITH on December 24, 2019, in the County of Duval and the State of Florida, did unlawfully by force, violence, assault, or putting in fear, take money or other property, to-wit: vehicle , the property of Jeffrey Simmons, from the person or custody of Lamar Louis Wright, with the intent to permanently or temporarily deprive Jeffrey Simmons of the money or other property, and in the course of committing said robbery, carried a firearm, to-wit: handgun, contrary to the provisions of Section 812.13(2)(a), Florida Statutes.
COUNT2
TREVON MARQUISE SMITH on December 30, 2019, in the County of Duval and the State of Florida, did actually possess a firearm, to-wit: handgun, having been convicted of a felony in the courts of the State of Florida, to-wit: Aggravated fleeing or attempting to elude a law enforcement officer, in the Circuit Court, in and for the Fourth Judicial Circuit of Florida, on March 7, 2018, contrary to the provisions of Sections 790.23(1)(a) and 775.087(2)(a)(1 ), Florida Statutes.
MELISSA W. NELSON, STATE ATIORNEY FOURTH JUDICIAL CIRCUIT
I By:~ /v ,_....__.. Assistant State Attorney Fourth Judicial Circuit of Florida, in and for Duval County
STATE OF FLORIDA COUNTY OF DUVAL . .. , Personally appeared before me, GARRETT Hill BAR I~ , Assistant State Attorney, for the Fourth Judicial Circuit of the State of Florida, in and for Duval County, who is personally known to me, and who being first duly sworn, says that the allegations as set forth in the foregoing information are based upon facts that have been sworn to as true, and which, if true, would constitute the offense therein charged, and that this prosecution is instituted in good faith, and hereby certifies that testimony under oath has been received from the material witness(es) for the offense. Sworn to and subscribed before me this 3 / day of August, 2020. i i ~ f()· • By: \ ; /l!ls.eap., J · filil£)l_,.
10 RONNIE FUSSELL, Clerk of the Circuit Court, Fourth Judicial Circuit of Florida, In and For Duval County, and Clerk of the County Court, In and For Duval County, Florida.
FILED THIS ______BY DEPUTY CLERK:__..,(_.~~o_ae_· '---Zu.__rlj)Ji__~ __
Dkt 2019-033922 NCO August 31 , 2020 Ext. s S/W DOB 06/19/1998 Race Black Sex Male
MCL S812.13(2)(a). F1 ,PBL; S790.23(1 )(a), 775.087(2)(a)(1 ). F2 NO.(S):
11 STATE ATTORNEY'S OFFICE FOURTH JUDICIAL CIRCUIT OF FLORIDA
CHARGING NOTICE - AMENDED CHARGES
TO: CIRCUIT COURT CLERK DATE: August 31 , 2020
DIVISION: CRD
RE: STATE OF FLORIDA S.A. CASE NO.: 20CF000663AD
vs. CLERK NO.: 162019CF013111A
TREVON MARQUISE SMITH ARREST NO.: 2019-033922
CCR NO.: 2019-0873277
ORIGINAL CHARGE(S):
1) 812133F, CARJACKING (ARMED WITH DEADLY WEAPON), S812.133(1), 812.133(2)(a), F1 ,PBL, DCF
FILED CHARGE(S):
1) 81213C, ARMED ROBBERY , S812.13(2)(a), F1,PBL
AMENDED CHARGE(S):
1) 81213C, ARMED ROBBERY, S812.13(2)(a), F1 ,PBL
2) 790238, POSSESSION OF A FIREARM BY A CONVICTED FELON, S790.23(1)(a), 775.087(2)(a)(1), F2
The State Attorney's Office, through the Assistant State Attorney listed below, is filing only the charges listed above. Any Filed Charges that are not listed as Amended Charges have either been dropped or changed from the original filed charges.
Brittany Lynne Johnson Assistant State Attorney
Note: This Notice relates to the Information filed in the above-referenced case number only and in no way effects any other charges this defendant may have pending.
Cir_Charging Notice Amend Page12 1 of 1 APPENDIX IV: NOTICE OF EXPIRATION OF SPEEDY TRIAL AND MOTION FOR DISCHARGE AS TO COUNT II IN THE AMENDED INFORMATION DATED AUGUST 31,2020
13 Filing# 113653515 E-Filed 09/21/2020 08:53:48 AM
lN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA
STATE OF FLORIDA,
v.
TREVON M. SMITH
Defendant. CASE NO.: 2019-CF-0131 l I ------·' DlVISION; CR-D
NOTICE OF EXPIRATION OF SPEEDY TRIAL AND MOTION FOR DISCHARGE AS TO COUNT II IN THE AMENDED INFORMATION, DATED AUGUST 31, 2020
TREVON M. SMITH by and through his undersigned Assistant Public Defender, pursuant to Flu.R.Crim.P. 3. J9 J(u) and (p), moves this Honorable Court to discharge Mr. Smith from prosecution of these mutters as it pertains to Ct II of the Amended Information, dated August 31, 2020. As grounds to support this Motion. Mr. Smith would further allege the following: FACTS: I. Mr. Smith was arrested on December 30, 2019 for Armed Carjacking with a
Fircann/Wcapon.
2. On January 28, 2020, an Information was filed. The State filed a one count Information
for Armed Robbery.
3. The allegations are that one the vehicle in question was found it was located, it was found
with firearms contained therein. The knowledge of the firearms within the vehicle and the
request for testing was done on the date of clients arrest on December 30, 2019. Those
firearms were swabbed for DNA and the results of the FDLE findings were known to the
State after February 27, 2020 (us was dated in the FDLE report). (Report Attached us
Exhibit# I).
14 ACCEPTED: DUVAL COUNTY, RONNIE FUSSELL, CLERK, 09/22/2020 02:39:14 PM 4. The State knew of DNA results and neglected to amend the Information with new
charges related to the FDLE results for over 6 months; completely denying Mr. Smith of
his speedy trial rights as to that count.
5. A case precisely on point - is Pezzo v. State, 903 So. 2d 960 (Fla. 1st DCA 2005)(held
that the trial court erred in not discharging the State's second amended information filed
outside of the Defendant's speedy trial rights - case was reversed and remanded with
instructions to the trial court to forever discharge the charges contained in the second
amended information against the Defendant).
:MEMORANDUM OF LAW AND ARGUMENT:
6. Just because the criminal justice system is in a global pandemic during unprecedented
times, we cannot make constitutional concessions to completely disregard the rights of
the accused and the rights of a speedy trial and give massive extensions to cases/charges
that pre-dated COVID-19. While trials may be unable to proceed, one thing still within
the State's control is the timely filing of charges against Defendants, delaying over six (6)
months to amend an Information and file charges stemming from the same act/incident,
especially when the DNA information was known to the State is particularly egregious to
the rights of the Defendant.
7. The Defense will reference and site to an Order from the gth Judicial Circuit with Judge
Colaw who granted a defense Motion for Discharge on August 28, 2020, on the basis of
untimely delay. (Exhibit #2- Attached Both original Motion and Order from Judge
Colaw).
1. Because the amended information was not filed within 175 Days of the Defendant's
arrest, the State of Florida cannot now receive the benefit of the 15-day recapture or
15 "window" period provided by Rule 3.19 I (p), Florida Rules of Criminal Procedure. P.S. v.
State, 658 So.2d 92 (Fla. 1995). See also Reed v State, 649 So. 2d 227 (Fla. 1995);
Williams v. State, 757 So.2d 597 (Fla. 5th DCA 2000); State v. Clifton, 905 So. 2d
172,176 (Fla. 5th DCA 2005) ( ... taking no action ... the prosecution has essentially
abandoned prosecution and the recapture provisions do not apply ... the defendant MUST
be discharged). (Emphasis added).
a. In Stale v. Williams, 791 So.2d I088, FSC 200 I, the State filed an Information
206 days after the Defendant was arrested and the Defense filed a motion for
Discharge.
b. The trial court denied the Motion for Discharge, and a writ of prohibiLion was
filed where the question was certified.
c. The Supreme Court held that the State is not entitled to a recapture period where
the State has failed to file an infonnaLion within the 175 days.
d. Additionally, the Court discussed in its opinion that the State was not without
options; the State may have sought an extension with good cause.
2. As Judge Pleus stated in his dissenting opinion in McDowell v. Rodriguez, 822 So. 2d
14, l8 (Fla. 5th DCA 2002), "'Justice delayed is justice denied' may be a cliche to some,
but lo a litigant it is reality." "[l]nordinate delay brings the courts into disrepute.'' Fort
Walton Lumber & Supply Co. v. Par.. 142 So. 2d 346,349 (Fla. Isl DCA 1962).
3. The Florida Supreme Court held in Fuller, ••speedy trial time begins to run when the
accused is first taken into custody ... and the State may not file charges based on the same
conduct after speedy trial period has e;{pired. See Genden v. Fuller, 648 So. 2d 1183 (Fla.
1994 ); State v. Naveira, 873 So. 2d 300, 305 (Fla. 2004) (holding that the State cannot
16 charge a defendant after expiration of the applicable speedy trial period); State v. Clifton,
905 So. 2d 172, 176-77 (Fla. 5th DCA 2005) (holding that simply doing nothing to
initiate prosecution after the accused is taken into custody signifies that the State does not
intend to initiate prosecution ... the State essentially abandons the prosecution before the
defendant can avail himself or herself of the protections afforded by the speedy trial rule.
To allow the State to proceed in these instances would circumvent the purpose and intent
of the speedy trial rule and it is this mischief that the court seeks to prohibit by its
adoption of rule 3.191).
WHEREFORE, Defendant prays this Honorable Court grant this Motion forever discharging the Defendant from prosecution on Ct II.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the above and foregoing Motion to Suppress Physical Evidence has been furnished to the Office of the State Attorney, by hand and/or electronically, this _21st_ day of September 2020. Respectfully submitted,
CHARLIE COFER PUBLIC DEFENDER
BY: /~~eM. If. LateJ'& ----- TRISHA N. LAISSLE Fla. Bar No.: 112584 Assistant Public Defender
17 Exhibit# 1
18 FOLE rJ:.:t;b ~ it! Jacltu1Ullf fuiltaat,J ~r~e!.,., C,a.tn ~ OtSl:lt::t, 0:-.~"f Lnfa!:tt~ 9!l .~ D,ru bttt.. 8w~ E ,\Jbk~·!'.t-.'"'O
TO: Shot.[0,lil(e! \.\'tl.lmm .Fl) u: ~'l ":\!BER: ::!O~W..-039& 1Jclloot1lk Sl:mtl's OtfJr.c SL'B~OSS10~: l 2™12 $ Sl"BJECT(S}: Tr ~"'Of! :\ b.trpi,t' Sc:i:lb OITTSSE(S): :to~· Dl.:-.'2l Cctt.t\ De::~ 1.::. ~019 REO:Bt,".ct; n.i, rc,p,;n rrkf roc6 c~c 1ci:al1 I"~ 1" Ult rtrodJ ~m of i..~'\' E:lfmcmcm "' J.ll.':.1l¥}· l 4. ~W~at Fd:ru:uyO,;, ::!O!Olr.- Cbrut:;· Moms 11::uttpon ccnt.:u:::s CC!n:.~'l!ll. cp:m'-"OS. zd er w~m!lem msde ~· 1.1:.e 11:1.ba c,1Dr~ct:: rnu Jrtm JI •.\Jtacy uhibit " Dnaipt:la11 I 1-t~ S·.,-;il; :rem !1J:1 ~ ~!Imrie ll'cc:t dnw:n s.:~t 2 i.11 S-:\-:ib !ram G!oc1: Jl!J m:ur;z::ne :S l·U So;1,-;ib !rem tult w m11rit1nt -' 4-1 B~c.\l ,wab'.I &cm Ttt,Ull.Smdh RESlJ.U; 111m :f. lwlL mah l'Dll Iaua Sadtlt A IEUA Ii h:1fc Cl;m m a emrtar from dduc's HIS m111m11•mm1l'J&• I~; --~-" • I, ...."'#' • ,.,.,.~ • <:,,.,,,,u, 19 Exhibit# 2 20 IN THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRCUIT IN AND FOR ALACHUA COUNTY, FLORIDA ST A TE OF FLORIDA, CASE NO. 01 2020 CF OOOSS8 A Plaintiff, DJVII vs. PONCEY KOENITZ, Defendant. ------'' NOTICE OF EXPIRATION OF SPEEDY TRIAL TIME AND MOTION TO DISCHARGE COMES NOW the Defendant. by and through the undersigned attorney, pursuant to Fla.R.Crim.P. J.191(a) and (p). and files this Notice or Expiration oFSpeedy Trial Time. and moves this Court to discharge him forever in this case. As grounds therefore. the Defendant states: STANDARD GROUNDS I ARGUMENT I. The period for bringing the Defendant to trial under Fla.R.Crim.P. 3.191 has expired. and the Defendant has not been brought to trial. a. On February 20th. 20.20 the Defoodonl was arrested in the nbove styled cause. b. No information has been filed as of August 26th, 2020. c. Defendant has not waived his right to a speedy trial. d. The State did not seek. nor did the Coun approve an extension of the speedy trial period prior to its expiration pursuant to Rule 3.191. Florida Rules of Criminal Procedure. e. The State of Florida's failure to timely file an information in this cause is in no way attributable to the Defendant or his counsel. 2. Because an information was not filed within 175 Days of the Defendant's arrest. the State of Florida cannot now receive lhe benefit of the 15-day recapture or "window'' period provided by Rule 3.191 (p). Florida Rules of Criminal Procedure. P.S. v. State. 658 So.2d 92 (Fla. 1995). See also Reed v State, 649 So. 2d 227 (Fla. 1995); Williams v. State. 757 So.2d 597 (Fla. 5th DCA 2000). a. In State v. Williams. 791 So.2d 1088, FSC 2001. the State filed an Information 206 days after the Defendant was arrested and the Defense filed a motion for Discharge. b. The trial court denied the Motion for Discharge. and a writ of prohibition was filed where the question was certified. 21 ii. AOSC-16 specifically suspends actual or implied requirements for administering oaths in person to take legal/sworn lestimony. WHEREFORE, the Defendant requests the Coun enter an order forever discharging him in this cause. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished to the Oflicc of the State Anomey by eservice on August 26th. 2020. Office of Candice Brower Criminal Connict & Civil Regional Counsel ERIC ATRIA FBN: 11737 Assistant Regional Counsel 235 South Main Street. Suite 205 Gainesville, FL 3260 I 352-377-0567 eric .• 11r1,hi re I .1m l]orida.co111 22 Filing# 112587749 E-Filed 08128/2020 09:48:54 PM IN THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRCUIT IN AND FOR ALACHUA COUNTY, FLORIDA STATE OF FLORIDA, CASE NO.: Ol-2020-CF-000372-A Plaintiff, DIVISION: II vs. BRANDY LEE JOHNSON, Defendant. ORDER GRANTING MOTION FOR DISCHARGE THIS CAUSE comes before the Court upon Defendant's "Motion for Discharge for Failure to File Information within 175 Days," filed August 17, 2020, pursuant to Fla. R. Crim. P. 3.19l(a) and (p). The State has filed a motion to strike the motion for discharge. On August 26, 2020, a hearing was held on the motion. Upon consideration of the motion, the legal arguments of the parties, and the record. this Court finds and concludes as follows: 1. Defendant was arrested for this case on February 3, 2020 for the offense of Aggravated Battery with a Deadly Weapon. She was subsequently released on bond with the special condition that she be placed on GPS monitoring. 2. As of August 26, 2020, the State has not formally charged Defendant, either by information or indictment. It is undisputed that the State's failure to timely file an Information in this case is due to no fault of Defendant. 3. According to the State, the time requirement for it to formally charge Defendant has been continuously suspended by the Florida Supreme Court, starting with its Administrative Order AOSC20-13. See Jn Re: COVJD-19 Emergency Procedures in the Florida State Courts, Fla. Admin. Order AOSC20-13 (March 13, 2020) (on file with Clerk, Fla. Sup. Ct.) at 3, para. 3 23 ORDER GRANTING MOTION FOR DISCHARGE STATE VS. BRANDY LEE JOHNSON CASE No. 01-2020-CF-000372·A PAGE3 Stace v. Williams, 791 So.2d 1088, 1091 (Fla.2001)). 5. If the State files charges within 175 days of Defendant's arrest, it is entitled to a notice of expiration of speedy trial time and would have the benefit of the recapture window provided for by Florida Rule of Criminal Procedure 3.191(p)(3). Id. However, "the state loses the benefit of the recapture provision if it neglects to file charges until after expiration of the 175-day speedy trial period." Id. at 336-37 (citing Williams, 791 So.2d at 1091 ("(W]e hold that the speedy trial time begins to run when an accused is taken into custody and continues to run even if the State does not act until after the expiration of that speedy trial period. The State may not file charges based on the same conduct after the speedy trial period has expired."). 4. Because the State, here, has failed to file charges against Defendant within the 175-day speedy trial period set forth in rule 3.191(a), Defendant is entitled to discharge. See Scace v. Naveira, 873 So. 2d 300, 305 (Fla. 2004) ("[T]he State may file a charging document at any time within the applicable speedy trial period .... [H]owever, the State cannot charge the defendant after that period expires."). 5. Although the State contends that the Florida Supreme Court's suspension of speedy trial in Florida entitles it to delay filing formal charges against Defendant in this case, this Court finds that the Florida Supreme Court's express purpose and intent for the speedy trial suspension, as reflected in its administrative orders on the subject, does not create such an entitlement. 6. Florida Supreme Court AOSC20·13 states: "[I]t is the intent of this order temporarily to suspend grand jury proceedings, jury selection proceedings, and criminal and civil 24 ORDER GRANTING MOTION FOR DISCHARGE STATE VS. BRANDY LEE JOHNSON CASE No. 01-2020-CF-000372-A PAGES attorney in the county where the crime was committed .... In cases that are not handled by a plea or pretrial release such that the defendant will continue to be detained in the jurisdiction of the holding court for an indefinite period of time, chief judges are directed to ensure that the due process rights of the defendant are protected by facilitating the temporary transfer of the case to the holding court, if necessary; by having a judge from the holding court designated by the Chief Justice, or designated by the chief judge if the home and holding court are within the same circuit, as a judge of the home court to handle emergency or other necessary matters in the case; or by other appropriate means."), 7 ("Where exigencies make it impossible to meet the 20-day time period in Florida Rule of Criminal Procedure 3.210(b), chief judges of the circuit courts are hereby authorized to direct judges to hold competency hearings as soon as practicable after the date of filing a motion to determine competency. Chief judges are also authorized to allow experts and attorneys to conduct and attend competency evaluations by remote means, if practicable."), 8 ("To maintain judicial workflow to the maximum extent feasible, chief judges are directed to take all possible steps to facilitate conducting proceedings with the use of technology."). 9. Furthermore, it is the expressed intent of the Florida Supreme Court that the trial court consider the rights of the defendants and the victims and act in a manner consistent with moving cases towards resolution, even in the midst of the pandemic. See In Re: Comprehensive COVID-19 Emergency Measures for the Florida State Courts, Fla. Admin. Order A0SC20-23 (Amendment 6) (August 12, 2020) (on file with Clerk, Fla. Sup. Ct.) at 3-4 ("The presiding judge in all cases must consider the constitutional rights of crime victims and criminal 25 ORDER GRANTING MOTION FOR DISCHARGE STATE VS. BRANDY LEE JOHNSON CASE No. 01-2020-CF-000372-A PAGE7 based on the video evidence and Defendant's confession, they had sufficient evidence to file an Infonnation. See State v. Gonzalez, 212 So. 3d 1094, 1096 (Fla. 5th DCA 2017) ("[A} charging documem is 'no more than an accusation, the merits of which will be determined at trial.' and the threshold of proof to levy a criminal charge is 'probable cause,' not proof beyond a reasonable doubt.") (quoting Murray v. Scace, 3 So.3d 1108, 1118 (Fla. 2009)). "The threshold determination by a prosecutor is whether the sworn testimony is sufficient to establish in the mind of a reasonable prosecutor that lhere exists probable cause to believe that the defendant committed the crime." Gonzalez, 212 So. 3d at 1097-98. "In making this determination, just as in the case of an indictment or other probable cause determinations, the prosecutor is not necessarily limited to reliance on legally admissible evidence .... A prosecutor may also rely upon corroborated or otherwise reliable witness statements gathered by an officer in the ordinary course of an investigation[.]" Id. at 1098. Furthennore, as the Fifth DCA noted in Gonzalez, [w]hen a challenge is made to an information based on the sufficiency or the sworn testimony upon which the prosecutor relied ... the question for the trial court is whether the prosecutor acted in good faith, not whether the evidence relied on is substantial enough .... Here, .•. the affidavit is more than sufficient to support a finding of probable cause to levy the charge. It contains substantial evidence of the crime, noc the least of which was a confession. The victim's statement to the officer might qualify as an exception to the hearsay rule and is nevertheless inherently reliable due to the circumstances under which it was given and the independent corroboration by the officer. Even without the consideration of the hearsay from the victim, the officer's testimony alone is sufficient material evidence to support the charge and could potentially support a conviction. Many criminal cases are commenced and proven at trial without victim testimony when the victim is deceased, uncooperative, or otherwise unavailable. Gonzalez, 212 So. 3d at 1098 (emphasis added). Thus, the State's purported inability to interview 26 ORDER GRANTING MOTION FOR DISCHARGE STATE VS. BRANDY LEE JOHNSON CASE No. 01-2020-CF-000372-A PAGE9 the county where the crime was committed."), (b) ("To preserve and protect the right of crime victims to achieve justice, ensure a meaningful role throughout the criminal Uustice system] for crime victims, and ensure that crime victims' rights and interests are respected and protected by law in a manner no less vigorous than protections afforded to criminal defendants and juvenile delinquents, every victim is entitled to the following rights, beginning at the time of his or her victimization: ... The right to due process and to be treated wilh fairness and respect for the victim's dignity .... The right to proceedings free from unreasonable delay, and to a prompt and final conclusion of the case ... "), Fla. Const. 13. As Judge Pleus stated in his dissenting opinion in McDowell v. Rodriguez, 822 So. 2d 14, 18 {Fla. 5th DCA 2002), '"Justice delayed is justice denied' may be a cliche to some, but to a litigant it is reality." "[I]nordinate delay brings the courts into disrepute." Fort Walton Lumber & Supply Co. v. Par., 142 So. 2d 346, 349 (Fla. 1st DCA 1962). Based on the foregoing. it is ORDERED AND ADJUDGED that: I. Defendant's motion for discharge is hereby GRANTED and she is hereby DISCHARGED. II. The State's motion to strike is hereby DENIED. DONE AND ORDERED on Friday, August 28, 2020, nunc pro tune August 26, 2020. James M. Colaw. Circuit Judge 01 ·2020·CF·000372·A08i26/2020 08:55 58 PM 27 APPENDIXV: TRANSCRIPTS OF OCTOBER 2, 2020 PROCEEDINGS 28 1 IN THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA CASE NO.: 16-2019-CF-013111 DIVISION: CR-D STATE OF FLORIDA -vs- TREVON MARQUISE SMITH, Defendant. ______ STATE OF FLORIDA) COUNTY OF DUVAL ) COURT PROCEEDINGS held before the Honorable Mark Borello, Circuit Court Judge in the above-entitled action, held on October 2, 2020, at 8:30 a.m., at the Duval County Courthouse, 501 West Adams Street, Courtroom Number 306, and taken down stenographically via Zoom Video Conferencing by Ashley Whitehair, Certified Court Reporter and Notary Public in and for the State of Florida at Large. ------ Ashley Whitehair Official Reporters, Inc. 421 West Church Street, Suite 703 Jacksonville, Florida 32202 (904) 358-2090 Official Reporters, Inc. 29 2 A P P E A R A N C E S BRITTANY JOHNSON, Esquire (Via Zoom Video Conferencing) Assistant State Attorney Office of the State Attorney Ed Austin Building 311 West Monroe Street Jacksonville, Florida 32202 Attorney on behalf of the State of Florida. TRISHA LAISSLE, Esquire (Via Zoom Video Conferencing) Assistant Public Defender Office of the Public Defender Jake M. Godbold City Hall Annex 407 North Laura Street Jacksonville, Florida 32202 Attorney on behalf of the Defendant. Official Reporters, Inc. 30 3 I N D E X Page No. COURT PROCEEDINGS 10/02/20...... 5 (Via Zoom Video Conferencing) CERTIFICATE OF REPORTER...... 26 Official Reporters, Inc. 31 4 E X H I B I T S Page No. Court (None Entered/Admitted.) State (None Entered/Admitted.) Defense (None Entered/Admitted.) Official Reporters, Inc. 32 5 1 October 2, 2020 8:58 a.m. 2 P R O C E E D I N G S 3 * * * * * 4 (Defendant present via Zoom.) 5 THE COURT: Good morning, sir, at MCC 6 North. This is Judge Borello. Can you give 7 us your name, please. 8 THE DEFENDANT: Yes, sir. My name is 9 Trevon Smith. 10 MS. LAISSLE: And, Judge, he's here for 11 our motion to discharge and the order to show 12 cause on the two witnesses. 13 THE COURT: Okay. All right. We'll 14 wait for Ms. Young to come back then. 15 MS. LAISSLE: Yes, Your Honor. 16 THE COURT: Mr. Smith, hang tight. 17 Don't go anywhere. Just stay there. 18 THE DEFENDANT: Yes, sir. 19 (Case passed temporarily.) 20 THE COURT: Well, we might want to go -- 21 well, let's see who these -- I guess, bring 22 back K51. 23 MS. JOHNSON: Your Honor, I believe that 24 K51 and the female that joined during the 25 previous hearing are the witnesses for the Official Reporters, Inc. 33 6 1 order to show cause hearing. 2 THE COURT: Oh, is that right. 3 All right. Well, let's go ahead and 4 handle that then. 5 MS. LAISSLE: The order to show cause 6 then, that portion, at least? 7 THE COURT: Yeah, we'll do at least that 8 then. 9 MS. LAISSLE: Okay. 10 THE COURT: All right. What's going on 11 here? 12 All right. Mr. Smith, there at MCC, can 13 you hear us? 14 THE DEFENDANT: Yes, sir. 15 THE COURT: All right. This is Trevon 16 Smith on Page 5. 17 MS. LAISSLE: Trisha Laissle on behalf 18 of Mr. Smith, who is present via Zoom. 19 THE COURT: Go ahead and put the other 20 person in too, the C210. 21 (Pause.) 22 THE COURT: All right, Ms. Laissle? 23 MS. LAISSLE: Judge, in this matter, if 24 we can have the person who is in the Zoom call 25 for K51 identify himself just for record Official Reporters, Inc. 34 7 1 purposes. 2 THE COURT: All right. This is Judge 3 Borello. Will the person whose phone is 4 listed as K51 please tell me your name. 5 THE WITNESS: (No response.) 6 THE COURT: Can you hear me? 7 THE WITNESS: (No response.) 8 THE COURT: K51, can you hear me? 9 THE WITNESS: (Shakes head from side to 10 side.) 11 THE COURT: He's shaking his head, 12 but... 13 THE BAILIFF: I'm sending him a message 14 to turn his audio on. 15 THE COURT: All right. They're sending 16 him a message to see if he'll turn his audio 17 on. 18 Can the person whose phone that's listed 19 as C210AE, this is Judge Borello, can you 20 identify yourself, please. 21 THE WITNESS: (No response.) 22 THE COURT: And she also may be driving. 23 I can't tell. Is that car moving? 24 MS. LAISSLE: Yeah, I believe so. 25 THE COURT: Well, we lost the other Official Reporters, Inc. 35 8 1 person. 2 MS. ENGLAND: Your Honor, K51 has sent a 3 message to everyone in the group. I think he 4 said he doesn't know how. 5 The Court was asking him to turn his 6 audio and video on. He's saying he doesn't 7 know how. 8 THE COURT: Got it. I see that there. 9 MS. ENGLAND: Yes, sir. 10 MS. JOHNSON: Now, it looks like he's 11 connecting. 12 THE COURT: I think they are both 13 connected. Well, sort of. 14 Mr. Beard is saying "click the bottom 15 left hand corner of the screen." 16 MS. LAISSLE: I think it's a little 17 different from the cell phone. 18 THE COURT: Yeah, I mean, ours has a 19 thing that says mute, but I don't know that 20 theirs does. 21 (Pause.) 22 THE COURT: Okay. Ma'am, there at -- 23 whose phone is C210AE, this is Judge Borello, 24 can you hear me? 25 THE WITNESS: (No response.) Official Reporters, Inc. 36 9 1 THE COURT: All right. So what do you 2 want to do? 3 MS. LAISSLE: Well, Judge, obviously, 4 they need to answer to the Court as to why 5 they haven't been participating in 6 depositions, and Mr. Lamar Wright, who 7 potentially is K51 has been avoiding my 8 investigator and communicating at all with 9 either party, the State or myself. 10 So, at this point, I think we'd have to 11 suspend and ask that they be present 12 physically, if we're going to have 13 technological issues. 14 THE COURT: I think that's probably what 15 we need to do. 16 THE WITNESS: (Unintelligible.) 17 MS. JOHNSON: It sounds like there is 18 audio for K51. 19 THE COURT: The person whose phone 20 that's listed as K51, this is Judge Borello, 21 can you hear me? 22 THE WITNESS: Yes, sir. I'm trying to 23 figure out how to start my video. Can you 24 hear me? 25 THE COURT: We can hear you. Official Reporters, Inc. 37 10 1 THE WITNESS: Can you hear me now? 2 THE COURT: We can hear you and see you. 3 Can you hear us? 4 THE WITNESS: Yes. I finally figured it 5 out. 6 THE COURT: Good. Very good. 7 Can you tell me your name, please, sir. 8 THE WITNESS: Lamar Wright. 9 THE COURT: All right. Mr. Wright, 10 thank you for joining us this morning. 11 And the lady who was also asked to be 12 here, we no longer have her, right? 13 THE WITNESS: Hello? 14 THE COURT: Good morning, ma'am. This 15 is Judge Borello. Can you give me your name, 16 please. 17 THE WITNESS: Good morning. Alexis. 18 How are you? 19 THE COURT: Alexis what? 20 THE WITNESS: Floyd. 21 THE COURT: All right. Ms. Floyd, thank 22 you for being here. 23 Now, I see you're in a vehicle. You're 24 not moving, right? 25 THE WITNESS: No, I'm stopped at the oil Official Reporters, Inc. 38 11 1 change place. 2 THE COURT: All right. So you pulled 3 over off the road? 4 THE WITNESS: Yes, sir. 5 THE COURT: Okay. Very good. 6 All right. Mr. Wright and Ms. Floyd, 7 I've asked for you to both be here this 8 morning, this is on the case of State of 9 Florida versus Trevon Smith, both of you, I 10 believe, were listed as potential witnesses in 11 this case by the State of Florida. 12 Is that right, Ms. Johnson? 13 MS. JOHNSON: Yes, Your Honor. 14 THE WITNESS: Yes. 15 THE COURT: And the defense in this 16 case, the Public Defender's Office, 17 Ms. Laissle on behalf of Mr. Smith is 18 attempting to take your depositions. 19 Ms. Laissle, is that right? 20 MS. LAISSLE: Yes, Judge. Mr. Wright is 21 actually the listed victim of the carjacking 22 case, and then Ms. Floyd is an eyewitness 23 potentially, and I have been trying to depose 24 both of them. Depositions -- 25 THE COURT: Wait. Do you have a new Official Reporters, Inc. 39 12 1 date that you wish to depose both of them? 2 MS. LAISSLE: Ms. Johnson and I can 3 certainly put our heads together. 4 THE COURT: Well, let's do that now, 5 because I'm going to tell them when and how 6 they need to appear. So tell me when you want 7 to do it. 8 (Pause.) 9 THE COURT: For a motion to show cause, 10 you guys should be prepared to do that. 11 MS. JOHNSON: Yes, Your Honor. I can 12 advise the Court that I am available on 13 October 19th, October 15th, and October 14th. 14 THE COURT: In the afternoons? 15 MS. JOHNSON: On the 19th I'm also 16 available in the morning, but the 14th and 17 15th would be the afternoons. 18 THE COURT: All right. Ms. Laissle? 19 MS. LAISSLE: The 15th in the afternoon 20 is fine. 21 THE COURT: What time, 1:30? 22 MS. LAISSLE: Yes, please. 23 THE COURT: Okay. Ms. Floyd and 24 Mr. Wright, the defense wants to take your 25 depositions, your statements in this case, on Official Reporters, Inc. 40 13 1 October the 15th at 1:30. 2 What day of the week is October 15th? 3 MS. LAISSLE: It's a Thursday. 4 MS. JOHNSON: A Thursday. 5 THE COURT: A Thursday. So Thursday, 6 October 15th, at 1:30. 7 And this will be via Zoom, just like 8 today; is that right? 9 MS. LAISSLE: Yes, sir. 10 THE COURT: All right. 11 Mr. Wright, do you understand that? 12 THE WITNESS: Yep. 13 THE COURT: All right. 14 Ms. Floyd, do you understand that? 15 THE WITNESS: Yes, sir. 16 THE COURT: Okay. Now, I'm ordering you 17 to appear via Zoom, just like today, October 18 the 15th at 1:30. The State and the defense 19 will get in touch with you, and tell you what 20 number to call, and how to arrange it just 21 like today. 22 If you do not show up for the Zoom call, 23 for your depositions on those dates, if either 24 side comes to me afterwards and says you did 25 not appear and wants me to do an order to show Official Reporters, Inc. 41 14 1 cause, I will consider doing that, which means 2 that I can sanction you, including, putting 3 you in jail, which I don't want to do. 4 So make sure you show up for the 5 depositions, all right? 6 THE WITNESS: (Nods head up and down.) 7 THE WITNESS: Okay. Quick question. 8 THE COURT: Sure. 9 THE WITNESS: Okay, because I was 10 listening to Ms. Laissle speak, and she said 11 eyewitness, but I don't even know who this 12 person is. 13 THE COURT: Well, that's okay, just 14 whatever the truth is, you come into the 15 deposition and whatever questions they ask 16 you, you just tell the truth, okay? 17 THE WITNESS: Oh, okay. Yes, sir. 18 THE COURT: All right. Any other 19 questions? 20 MS. LAISSLE: Judge, if I may, the -- I 21 know that the state attorney's investigator 22 was able to get in contact, obviously, for 23 both witnesses to be here and present, does 24 Ms. Johnson have their contact information, or 25 should we inquire of the witnesses off the Official Reporters, Inc. 42 15 1 record for purposes of subpoena for the 2 deposition? 3 THE COURT: It sounds like they know how 4 to get ahold of them, because they got them 5 here today, so... 6 MS. JOHNSON: Your Honor, I was actually 7 going to ask for contact information as well, 8 because my investigator had to go hand serve 9 them in person. 10 THE COURT: All right. 11 MS. JOHNSON: But if we're going to do 12 that, I would prefer that the defendant not be 13 present, just for purposes of contact 14 information. 15 THE COURT: Well... 16 MS. LAISSLE: I don't think that's 17 possible. 18 THE COURT: Yeah, I don't know how to do 19 that. So can I -- can we -- 20 MR. HILL: I think that the Court can 21 pass their case, have the defendant leave the 22 area, and then... 23 THE COURT: Yeah, that's what I was 24 thinking, we'll do everything on the case 25 except, and then we'll have Mr. Smith leave, Official Reporters, Inc. 43 16 1 and then the witnesses stay on and give us 2 their phone numbers. So let's do that. 3 All right. Mr. Wright and Ms. Floyd, 4 stay on the call. Do not go anywhere. Stay 5 right where you are, okay? 6 THE WITNESS: Okay. 7 THE COURT: Mr. Wright, are you good? 8 Stay right there. 9 THE WITNESS: All right. (Nods head up 10 and down.) 11 THE COURT: All right. Okay. So that's 12 what we're going to do then. And October 15th 13 is the deposition. That's a Thursday. 14 So do you want to come back the 15 following Monday the 19th for pretrial? 16 MS. LAISSLE: Yes, sir. That's fine. 17 THE COURT: All right. Anything else we 18 need to handle on Mr. Smith's case? 19 MS. LAISSLE: The motion for discharge 20 for Count 2. 21 THE COURT: Are we doing that this 22 morning? 23 MS. JOHNSON: We had... 24 MS. LAISSLE: Yes, sir. 25 THE COURT: All right. I can't have him Official Reporters, Inc. 44 17 1 leave then. 2 MS. LAISSLE: I know. The only other 3 suggestion I would have is maybe a break out 4 room for the two witnesses and Ms. Johnson. 5 THE COURT: Do you know how to do that, 6 Ms. Johnson, have them... 7 MS. JOHNSON: I think that Your Honor 8 has to set up the break out room, and then put 9 us all in there, and then we all -- 10 THE COURT: How do I do that? Does 11 anybody know? 12 MS. ENGLAND: I believe you can click 13 the dots in the upper right corner of each 14 persons box and send them somewhere. 15 THE COURT: All right. Ms. Floyd and 16 Mr. Wright, I'm going to try to send you into 17 just a little separate room here with 18 Ms. Johnson and Ms. Laissle, where you guys 19 can exchange contact information. So that's 20 what I'm going to try to do right now. 21 Mr. Smith, stay right where you are. We 22 have one more matter to hear with your 23 hearing. 24 So let me see if I can do that. Well, 25 it just says -- I clicked on the box, and Official Reporters, Inc. 45 18 1 there's no -- it says put in waiting room. 2 There's some other options, but none of them 3 are a break out room. 4 MR. BEARD: Your Honor, is there 5 anything on the bottom of the screen that 6 gives you the option? 7 THE BAILIFF: Nope. 8 THE COURT: Nope. 9 THE BAILIFF: We don't have it. 10 THE COURT: We don't have that. 11 MR. BEARD: I feel like this is déjà vu 12 from a few months ago. 13 MS. ENGLAND: And they could probably 14 send a private chat or something? 15 THE COURT: Stop. This is what 16 we're going to do, and I don't care if anybody 17 doesn't like it. 18 Mr. -- this will be -- the phone numbers 19 will be off the record. 20 Mr. Smith, I'm going to ask these 21 witnesses to give their phone numbers, so that 22 the attorney can contact them. You're not to 23 memorize these numbers. You're not to give 24 them to anybody. You're not to utilize them 25 in any fashion. Is that understood? If you Official Reporters, Inc. 46 19 1 do that, you're going to be in some serious 2 trouble with me. Do you got it, Mr. Smith? 3 THE DEFENDANT: Yes, sir. 4 THE COURT: All right. 5 MS. LAISSLE: Do we also want to just 6 have him momentarily put the phone down? 7 THE COURT: No, we're just going to do 8 this. I'm tired of messing with it. 9 Okay, this is what we're going to do, 10 Mr. Wright, this is off the record, no one is 11 going to record this, but go ahead and give 12 your phone number to Ms. Johnson, so she knows 13 how to get ahold of you. 14 THE WITNESS: (No response.) 15 THE COURT: Mr. Wright? 16 (Witness Wright's number was given off 17 the record.) 18 THE COURT: All right. Do you got it? 19 MS. JOHNSON: Yes, sir. 20 THE COURT: All right. Thank you. 21 Ms. Floyd, are you still with us, or did 22 we lose her? 23 MS. JOHNSON: I see that she's... 24 THE WITNESS: I'm still here. 25 MS. JOHNSON: Okay. Official Reporters, Inc. 47 20 1 THE COURT: Ms. Floyd, same thing, this 2 is not being recorded, nobody is taking this 3 down: Give your phone number to Ms. Johnson, 4 so she can have it to get ahold of you. 5 (Witness Floyd's number was given off 6 the record.) 7 THE COURT: All right. Thank you, 8 ma'am. 9 So both of you are to show up, stay in 10 contact with the attorneys, and be available 11 to have your depositions taken on October the 12 15th at 1:30. 13 Thank you, both, for being here this 14 morning, and you're now free to go. 15 Thank you. 16 THE WITNESS: Yes, sir. 17 (Witness Wright and Witness Floyd 18 disconnect from Zoom.) 19 THE COURT: Okay. Now, let's go back on 20 the record and handle the motion for 21 discharge. 22 Is that right? 23 MS. LAISSLE: Yes, sir. 24 MS. JOHNSON: Yes, sir. 25 THE COURT: All right. Ms. Laissle? Official Reporters, Inc. 48 21 1 MS. LAISSLE: Judge, have you had the 2 opportunity to review the motion and the 3 attachments? 4 THE COURT: I got it right here. 5 MS. LAISSLE: Okay. Judge, actually, I 6 will reserve my argument for rebuttal. 7 I'll stand on my motion as it stands and 8 as written now, and then I'll just respond to 9 Ms. Johnson's argument. 10 THE COURT: All right. 11 State? 12 MS. JOHNSON: Yes, Your Honor, as the 13 Court knows, the defendant was arrested on 14 December 30th of 2019. He has been in custody 15 since that time, however, speedy trial has 16 been tolled since March 17th of 2020. 17 At the time that speedy trial was 18 tolled, it was 77 days. So we have almost 100 19 days to bring the defendant to trial once 20 speedy trial begins again. 21 THE COURT: Yeah, why is this motion not 22 moot at this point? Shouldn't it be stricken 23 as moot? Because we don't have speedy trial 24 right now. It's been tolled by the Supreme 25 Court. Official Reporters, Inc. 49 22 1 MS. LAISSLE: Judge -- 2 THE COURT: The only reason I wanted to 3 hear it was if it had run before the Supreme 4 Court tolled speedy trial, that would be one 5 thing, but if it theoretically ran -- or the 6 argument is that it ran some time during the 7 tolling period, how is this not a moot point 8 at this point? There is no speedy trial in 9 the state of Florida right now. 10 MS. LAISSLE: Correct. And, Judge, if 11 you had reviewed the motion and order from the 12 Eighth Circuit, where Judge Colaw just decided 13 this. 14 THE COURT: I saw it. I've read it. 15 MS. LAISSLE: This exact issue. 16 THE COURT: It's not binding on me. I 17 saw it. 18 MS. LAISSLE: Understood. But while we 19 don't have speedy trials, the State is still 20 permitted in their duties to be filing charges 21 as they have been all during COVID. 22 The fact that the Information, the FDLE, 23 DNA results came to the State's attention in 24 February, far before COVID and speedy trial 25 suspensions, they should have filed as soon as Official Reporters, Inc. 50 23 1 that was made aware to them. They took over 2 six months to do so. 3 And, again, I had case law cited in the 4 motion specifically from the First DCA -- 5 THE COURT: I read it. 6 MS. LAISSLE: -- regarding amending 7 charges, regarding tolling. 8 At this point, yes, I understand we are 9 not able to have trials, but the State should 10 still be motivated to investigate cases and do 11 their due diligence too. 12 THE COURT: I do not disagree with you, 13 but from a legal perspective unless or until I 14 get guidance from the Florida Supreme Court or 15 the First District Court of Appeal that tells 16 me that we still have speedy trial, then I'm 17 considering based on the most recent guidance 18 from the Florida Supreme Court that it has 19 been suspended, that that means exactly what 20 they said, that it has been suspended. 21 So there is no... you can 22 philosophically disagree, but there is no 23 speedy trial issue right now. 24 Now, if they come out tomorrow and say 25 based on the governor putting us into Phase 3, Official Reporters, Inc. 51 24 1 that speedy trial is back up and running, you 2 got a motion that's a viable motion that needs 3 to be heard. I'm not saying I'll grant it or 4 deny it, but I'll certainly hear it on the 5 merits. 6 But, until that time, it seems to me 7 that the proper course of action is to strike 8 it as moot. 9 MS. LAISSLE: I would object. Again, I 10 disagree, but I understand. 11 THE COURT: That's fine. And, listen, 12 as you know, it's nothing personal, so... 13 And I could be 100 percent wrong. And, 14 so, but that's what I'm going to do. That's 15 going to be what my order is. 16 And then you're certainly welcome to 17 take an appeal, and we can get some guidance, 18 which is what we need. 19 MS. LAISSLE: Sure. Understood. Then, 20 I guess, that concludes the hearing on that. 21 So, Judge, with regard to his case set 22 for pretrial, if you want to set it for after, 23 I believe, the 19th, after the depositions. 24 THE COURT: Yeah, I think that's the way 25 to do it. Official Reporters, Inc. 52 25 1 Hopefully, you get those depositions 2 taken, and we'll go from there. 3 But, in the meantime, if you decide to 4 take an appeal, that's certainly within your 5 purview. 6 So, all right, Mr. Smith, your 7 attorney's working hard on your case, and I'll 8 see you back on October the 19th. 9 Thank you, sir. 10 THE DEFENDANT: Yes, sir. 11 THE COURT: Okay. Let me just make sure 12 I have this in writing for you, in case that's 13 the direction you decide to go in. 14 MS. LAISSLE: Thank you, sir. 15 THE COURT: What's today, the 2nd? 16 Yeah. Okay. 17 Thank you, both. 18 Madam Clerk, you can have that back. 19 (Tenders instrument.) 20 * * * * * 21 (Whereupon, the proceedings for this 22 defendant were adjourned at 9:36 a.m.) 23 - - - 24 25 Official Reporters, Inc. 53 26 C E R T I F I C A T E O F R E P O R T E R STATE OF FLORIDA) COUNTY OF DUVAL ) I, Ashley Whitehair, Certified Court Reporter, certify that I was authorized to and did stenographically report via Zoom Video Conferencing the foregoing proceedings on October 2, 2020, and that the transcript is a true and complete record of my stenographic notes. /s/______Ashley Whitehair Ashley Whitehair Certified Court Reporter Official Reporters, Inc. 54 APPENDIX VI: gTH CIRCUIT ORDER FOR CASE 01-2020-CF-372 55 Filing # 112587749 E-Filed 08/28/2020 09:48:54 PM IN THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRCUIT IN AND FOR ALACHUA COUNTY, FLORIDA STATE OF FLORIDA, CASE NO.: 01-2020-CF-000372-A Plaintiff, DIVISION: II vs. BRANDY LEE JOHNSON, Defendant. ORDER GRANTING MOTION FOR DISCHARGE THIS CAUSE comes before the Court upon Defendant’s “Motion for Discharge for Failure to File Information within 175 Days,” filed August 17, 2020, pursuant to Fla. R. Crim. P. 3.191(a) and (p). The State has filed a motion to strike the motion for discharge. On August 26, 2020, a hearing was held on the motion. Upon consideration of the motion, the legal arguments of the parties, and the record, this Court finds and concludes as follows: 1. Defendant was arrested for this case on February 3, 2020 for the offense of Aggravated Battery with a Deadly Weapon. She was subsequently released on bond with the special condition that she be placed on GPS monitoring. 2. As of August 26, 2020, the State has not formally charged Defendant, either by information or indictment. It is undisputed that the State’s failure to timely file an Information in this case is due to no fault of Defendant. 3. According to the State, the time requirement for it to formally charge Defendant has been continuously suspended by the Florida Supreme Court, starting with its Administrative Order AOSC20-13. See In Re: COVID-19 Emergency Procedures in the Florida State Courts, Fla. Admin. Order AOSC20-13 (March 13, 2020) (on file with Clerk, Fla. Sup. Ct.) at 3, para. 3 56 ORDER GRANTING MOTION FOR DISCHARGE STATE VS. BRANDY LEE JOHNSON CASE NO. 01-2020-CF-000372-A PAGE 2 (“All time periods involving the speedy trial procedure, in criminal and juvenile court proceedings, are suspended from the close of business on Friday, March 13, 2020, until the close of business on Monday, March 30, 2020, or as provided by subsequent order.”); see also In Re: COVID-19 Emergency Procedures in the Florida State Courts, Fla. Admin. Order AOSC20-17 (March 18, 2020) (on file with Clerk, Fla. Sup. Ct.) at 3 (“It is hereby ordered that all time periods involving the speedy trial procedure, in criminal and juvenile court proceedings, are further suspended through the close of business on Monday, April 20, 2020, or as provided by subsequent order. The suspension of time limits under the speedy trial procedure restores additional days equal to the number stated in Administrative Order No.AOSC20-13 and this order.”); In Re: Comprehensive COVID-19 Emergency Measures for the Florida State Courts, Fla. Admin. Order AOSC20-23 (Amendment 6) (August 12, 2020) (on file with Clerk, Fla. Sup. Ct.) at 14. para. IV.A(1) (“All time periods involving the speedy trial procedure in criminal and juvenile court proceedings shall remain suspended until 90 days after the Chief Justice has approved the certification of a chief judge of a judicial circuit that the circuit or a county within the circuit has transitioned to Phase 3 pursuant to Fla. Admin. Order No. AOSC20-32, as amended.”). The State argues that it does not have to formally file charges against any defendant until the speedy trial suspension is lifted. 4. Florida Rule of Criminal Procedure 3.191(a) states that “every person charged with a crime shall be brought to trial... within 175 days of arrest if the crime charged is a felony.” (emphasis added). “The speedy trial time continues to run after arrest, even when the state takes no further action.” Doctor v. State, 68 So. 3d 335, 336 (Fla. 1st DCA 2011) (citing 57 ORDER GRANTING MOTION FOR DISCHARGE STATE VS. BRANDY LEE JOHNSON CASE NO. 01-2020-CF-000372-A PAGE 3 State v. Williams, 791 So.2d 1088, 1091 (Fla.2001)). 5. If the State files charges within 175 days of Defendant’s arrest, it is entitled to a notice of expiration of speedy trial time and would have the benefit of the recapture window provided for by Florida Rule of Criminal Procedure 3.191(p)(3). Id. However, “the state loses the benefit of the recapture provision if it neglects to file charges until after expiration of the 175–day speedy trial period.” Id. at 336-37 (citing Williams, 791 So.2d at 1091 (“[W]e hold that the speedy trial time begins to run when an accused is taken into custody and continues to run even if the State does not act until after the expiration of that speedy trial period. The State may not file charges based on the same conduct after the speedy trial period has expired.”). 4. Because the State, here, has failed to file charges against Defendant within the 175-day speedy trial period set forth in rule 3.191(a), Defendant is entitled to discharge. See State v. Naveira, 873 So. 2d 300, 305 (Fla. 2004) (“[T]he State may file a charging document at any time within the applicable speedy trial period.... [H]owever, the State cannot charge the defendant after that period expires.”). 5. Although the State contends that the Florida Supreme Court’s suspension of speedy trial in Florida entitles it to delay filing formal charges against Defendant in this case, this Court finds that the Florida Supreme Court’s express purpose and intent for the speedy trial suspension, as reflected in its administrative orders on the subject, does not create such an entitlement. 6. Florida Supreme Court AOSC20-13 states: “[I]t is the intent of this order temporarily to suspend grand jury proceedings, jury selection proceedings, and criminal and civil 58 ORDER GRANTING MOTION FOR DISCHARGE STATE VS. BRANDY LEE JOHNSON CASE NO. 01-2020-CF-000372-A PAGE 4 jury trials, and to temporarily suspend procedural requirements and limitations that could hinder efforts to mitigate the effects of COVID-19 on the courts, court participants, and all the people of Florida[.]” In Re: COVID-19 Emergency Procedures in the Florida State Courts, Fla. Admin. Order AOSC20-13 (March 13, 2020) (on file with Clerk, Fla. Sup. Ct.) at 2. Thus, the purpose of the speedy trial suspension is to suspend court proceedings, not due process. 7. AOSC20-13 additionally states: “[I]t is the intent of this order to suspend the speedy trial procedure as stated herein in the manner described in Sullivan v. State, 913 So. 2d 762 (Fla. 5th DCA 2005), and State v. Hernandez, 617 So. 2d 1103 (Fla. 3rd DCA 1993)[.]” Id. Both cases relate to the suspension of jury trials due to exceptional circumstances (i.e., hurricanes) which made it impossible to hold such trials. Again, it is clear that the Florida Supreme Court’s intent is to suspend the speedy trial procedures solely as it relates to jury trials. Furthermore, the Florida Supreme Court’s administrative orders have no effect on the Office of the State Attorney’s ability to investigate its cases. The administrative orders limit what the courts can do, not the State or the defense. 8. In that regard, the Florida Supreme Court’s administrative orders reflect an expectation that the parties will be prosecuting their cases in all other respects. See, e.g., In Re: COVID-19 Emergency Procedures in the Florida State Courts, Fla. Admin. Order AOSC20-17 (March 18, 2020) (on file with Clerk, Fla. Sup. Ct.) at 6-7 (“Judges are further encouraged to coordinate with prosecutors, attorneys, defendants, and victims in order to utilize § 910.035, Florida Statutes, which allows for pleas of guilty or nolo contendere for persons arrested in counties outside of the county of prosecution, upon the consent of the defendant and the state 59 ORDER GRANTING MOTION FOR DISCHARGE STATE VS. BRANDY LEE JOHNSON CASE NO. 01-2020-CF-000372-A PAGE 5 attorney in the county where the crime was committed.... In cases that are not handled by a plea or pretrial release such that the defendant will continue to be detained in the jurisdiction of the holding court for an indefinite period of time, chief judges are directed to ensure that the due process rights of the defendant are protected by facilitating the temporary transfer of the case to the holding court, if necessary; by having a judge from the holding court designated by the Chief Justice, or designated by the chief judge if the home and holding court are within the same circuit, as a judge of the home court to handle emergency or other necessary matters in the case; or by other appropriate means.”), 7 (“Where exigencies make it impossible to meet the 20-day time period in Florida Rule of Criminal Procedure 3.210(b), chief judges of the circuit courts are hereby authorized to direct judges to hold competency hearings as soon as practicable after the date of filing a motion to determine competency. Chief judges are also authorized to allow experts and attorneys to conduct and attend competency evaluations by remote means, if practicable.”), 8 (“To maintain judicial workflow to the maximum extent feasible, chief judges are directed to take all possible steps to facilitate conducting proceedings with the use of technology.”). 9. Furthermore, it is the expressed intent of the Florida Supreme Court that the trial court consider the rights of the defendants and the victims and act in a manner consistent with moving cases towards resolution, even in the midst of the pandemic. See In Re: Comprehensive COVID-19 Emergency Measures for the Florida State Courts, Fla. Admin. Order AOSC20-23 (Amendment 6) (August 12, 2020) (on file with Clerk, Fla. Sup. Ct.) at 3-4 (“The presiding judge in all cases must consider the constitutional rights of crime victims and criminal 60 ORDER GRANTING MOTION FOR DISCHARGE STATE VS. BRANDY LEE JOHNSON CASE NO. 01-2020-CF-000372-A PAGE 6 defendants and the public’s constitutional right of access to the courts.... To maintain judicial workflow to the maximum extent feasible, chief judges are directed to take all necessary steps to facilitate the remote conduct of proceedings with the use of technology.... Nothing in this order is intended to limit a chief judge’s authority to conduct court business or to approve additional court proceedings or events that are required in the interest of justice, if doing so is consistent with this administrative order and protecting the health of the participants and the public.... Judges and court personnel who can effectively conduct court and judicial branch business from a remote location shall do so. Participants who have the capability of participating by electronic means in remote court proceedings shall do so.”). In that regard, this Court notes that from AOSC20-15 onward criminal arraignments have been noted to be essential court proceedings. The fact that criminal arraignments are essential court proceedings presupposes that the State is formally charging defendants during the time that the administrative orders are in effect and means that, a fortiori, the formal charging of defendants in itself during this time is essential. 10. Aside from the legal arguments in this case, this Court additionally notes that at no time prior to or during the motion hearing has the State presented any exceptional circumstances supporting a delay in filing formal charges in this case. Furthermore, the record itself does not reflect any basis for delay. First, the underlying offense in this case was captured on video, in which the perpetrator can be seen wearing the same clothing and shoes as the defendant was wearing when she was contacted by law enforcement shortly thereafter. Second, Defendant confessed to law enforcement post-Miranda to having committed the offense. Third, and finally, even if the State was unable to interview the alleged victim in this case in person, 61 ORDER GRANTING MOTION FOR DISCHARGE STATE VS. BRANDY LEE JOHNSON CASE NO. 01-2020-CF-000372-A PAGE 7 based on the video evidence and Defendant’s confession, they had sufficient evidence to file an Information. See State v. Gonzalez, 212 So. 3d 1094, 1096 (Fla. 5th DCA 2017) (“[A] charging document is ‘no more than an accusation, the merits of which will be determined at trial,’ and the threshold of proof to levy a criminal charge is ‘probable cause,’ not proof beyond a reasonable doubt.”) (quoting Murray v. State, 3 So.3d 1108, 1118 (Fla. 2009)). “The threshold determination by a prosecutor is whether the sworn testimony is sufficient to establish in the mind of a reasonable prosecutor that there exists probable cause to believe that the defendant committed the crime.” Gonzalez, 212 So. 3d at 1097–98. “In making this determination, just as in the case of an indictment or other probable cause determinations, the prosecutor is not necessarily limited to reliance on legally admissible evidence.... A prosecutor may also rely upon corroborated or otherwise reliable witness statements gathered by an officer in the ordinary course of an investigation[.]” Id. at 1098. Furthermore, as the Fifth DCA noted in Gonzalez, [w]hen a challenge is made to an information based on the sufficiency of the sworn testimony upon which the prosecutor relied... the question for the trial court is whether the prosecutor acted in good faith, not whether the evidence relied on is substantial enough.... Here, ... the affidavit is more than sufficient to support a finding of probable cause to levy the charge. It contains substantial evidence of the crime, not the least of which was a confession. The victim's statement to the officer might qualify as an exception to the hearsay rule and is nevertheless inherently reliable due to the circumstances under which it was given and the independent corroboration by the officer. Even without the consideration of the hearsay from the victim, the officer's testimony alone is sufficient material evidence to support the charge and could potentially support a conviction. Many criminal cases are commenced and proven at trial without victim testimony when the victim is deceased, uncooperative, or otherwise unavailable. Gonzalez, 212 So. 3d at 1098 (emphasis added). Thus, the State’s purported inability to interview 62 ORDER GRANTING MOTION FOR DISCHARGE STATE VS. BRANDY LEE JOHNSON CASE NO. 01-2020-CF-000372-A PAGE 8 the alleged victim in this case is not an exceptional circumstance which would have prevented it from filing formal charges in this case. 11. Finally, this Court notes two additional significant facts which undermine the State’s factual argument: (a) the state court system has been successfully operating during the pandemic using the same technology which is available to the State; and, (b) the State has continued to regularly file charging documents in other cases, both in cases pending before the pandemic began and in new cases which were filed after the pandemic began. There is no legitimate reason why the State has failed to timely file formal charges in this case. 12. As an aside, this Court finds it important to add that in Alachua County businesses and government offices (other than the courts) have been open to the public since the beginning of May (with mask and social distancing requirements). Because jury trials are not permitted under the Florida Supreme Court’s administrative orders, thousands of defendants’ right to a speedy trial and due process have been left in limbo indefinitely in Alachua County. Furthermore, the lack of trials over the past five months has had a deleterious effect on both sides’ discovery efforts, plea negotiations, and case preparation/investigation. The instant case is a prime example of the damage that has been done to defendants and victims’ constitutional rights to due process, speedy resolution of cases, and the right to meaningful access to the courts. See Art. I, § 16(a) (“In all criminal prosecutions the accused shall, upon demand, be informed of the nature and cause of the accusation, and shall be furnished a copy of the charges, and shall have the right to have compulsory process for witnesses, to confront at trial adverse witnesses, to be heard in person, by counsel or both, and to have a speedy and public trial by impartial jury in 63 ORDER GRANTING MOTION FOR DISCHARGE STATE VS. BRANDY LEE JOHNSON CASE NO. 01-2020-CF-000372-A PAGE 9 the county where the crime was committed.”), (b) (“To preserve and protect the right of crime victims to achieve justice, ensure a meaningful role throughout the criminal [justice system] for crime victims, and ensure that crime victims' rights and interests are respected and protected by law in a manner no less vigorous than protections afforded to criminal defendants and juvenile delinquents, every victim is entitled to the following rights, beginning at the time of his or her victimization:... The right to due process and to be treated with fairness and respect for the victim's dignity.... The right to proceedings free from unreasonable delay, and to a prompt and final conclusion of the case...”), Fla. Const. 13. As Judge Pleus stated in his dissenting opinion in McDowell v. Rodriguez, 822 So. 2d 14, 18 (Fla. 5th DCA 2002), “’Justice delayed is justice denied’ may be a cliche to some, but to a litigant it is reality.” “[I]nordinate delay brings the courts into disrepute.” Fort Walton Lumber & Supply Co. v. Par., 142 So. 2d 346, 349 (Fla. 1st DCA 1962). Based on the foregoing, it is ORDERED AND ADJUDGED that: I. Defendant’s motion for discharge is hereby GRANTED and she is hereby DISCHARGED. II. The State’s motion to strike is hereby DENIED. DONE AND ORDERED on Friday, August 28, 2020, nunc pro tunc August 26, 2020. 64 ORDER GRANTING MOTION FOR DISCHARGE STATE VS. BRANDY LEE JOHNSON CASE NO. 01-2020-CF-000372-A PAGE 10 CERTIFICATE OF SERVICE I HEREBY CERTIFY that copies have been furnished by U.S. Mail or via filing with the Florida Courts E-Filing Portal on Friday, August 28, 2020. JOY L DANNE [email protected] [email protected] Office of the State Attorney [email protected] [email protected] 65 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing appendix has been furnished to the Office of the Attorney General, by email at [email protected], representing the State of Florida, to the Office of the State Attorney, Fourth Judicial Circuit, by email at [email protected], representing the State of Florida, to the Honorable Mark Borello, by email at [email protected], and to the Petitioner, Trevon Marquise Smith, by hand at John E. Goode Pretrial Detention Facility, 500 East Adams Street, Jacksonville, FL 32202, this _3_·__ day of November, 2020. [Q~ ELIZABETH HOGAN WEBB Attorney for Petitioner 66