The waiting is the hardest part, according to Tom Petty. I get quite a few calls from folks wondering how long it will be before the state files charges against them. I always say, if you’re going to wait around to see what the government is going to do to you, expect the worst. The government is not your friend, and they’re not going to help you through the trauma of an arrest. And, after the trauma of an arrest, it can be stressful waiting to see what or when or if charges will be filed. On the inside of the government machine designed to rack up convictions, think about what information the prosecutor is reviewing before making a charging decision. A prosecutor has numerous cases, and will certainly review all of the facts in front of her. The problem is, if you haven’t hired an attorney to plead your case to the prosecutor before she has made a filing decision, then chances are, the only evidence they have to go on will be the extremely bias reports provided by law enforcement.
So, this may seem a bit obvious, but if you have a case that contains facts that were omitted by law enforcement (most cases fall under this category, and I’m not being cynical), hire an attorney as soon as possible so that the prosecutor can have all the facts before making a charging decision. No, this not a thinly veiled plug for my services. I’m just amazed at how serious some cases are, and yet, these folks are taking their time hiring an attorney. If you wait for something to happen, expect the worst to happen. If you’re proactive and actually have someone fighting for you–expect good things to happen. Any sort of delay is a bad thing. Defense evidence is slipping away. Video evidence is being taped over, dispatch calls are typically kept for 30 days, and most private security cameras hold their data for even less time than that. Add to that the numerous witnesses whose statements sound far more credible when taken within days of the incident–rather than months later. I had a trial last year that involved two eyewitnesses to a crime, and both eyewitnesses were intentionally ignored by the police (because the officers knew their testimony would not be helpful). Had we been able to point out this testimony to the prosecutor prior to their filing decision, it would have made all the difference in the world. Timing is everything, as they say (whoever ‘they’ are).Our case for the day involves a common question; “How long does the state have to file charges after an arrest?” The answer is, it depends. If its a felony charge, the state has 175 days to file charges (technically, they have 175 to file the official charging document known as an “Information”). If the charges are a misdemeanor, the state has 90 days to file. The speedy trial rule found in Rule 3.191(a) spells all of this out nicely, stating that “every person charged with a crime shall be brought to trial within 90 days of arrest if the crime charged is a misdemeanor, or within 175 days of arrest if the crime charged is a felony.” Let’s see how this works in the recent case of State. v. Borko, 2015 Fla. App. LEXIS 12400 (Fla. 2nd DCA August 19, 2015).
Borko was arrested for grand theft third degree of a bicycle. Almost 30 days after the arrest, the state filed an information charging Borko with felony grand theft. No worries here, right? Right. We’ve got felony charges filed within 175 days. But, approximately 100 days after the arrest, a prosecutor figured out that somebody screwed up the valuation of the bicycle–the stolen bike wasn’t worth a felony amount, and as such, the case should have been charged as a misdemeanor. So, on day 100, the state filed a misdemeanor petit theft, and dropped (nolle prossed) the felony charge. This was a tactical mistake, as you will soon see.
Borko’s defense attorney filed a “Notice of Expiration of Speedy Trial and a Motion for Discharge” on the new misdemeanor case, arguing that, under Rule 3.191, the misdemeanor was filed after the 90 time limit for a misdemeanor. The state argued that a felony court is entitled to keep a misdemeanor case beyond the 90 days, when the misdemeanor is related to the original felony. This isn’t quite true, but the example the state cited was Woodbury v. State, 110 So. 3d 17 (Fla. 2d DCA 2013). Woodbury was charged with felony DUI, which was basically a misdemeanor DUI plus two prior DUI’s. As is always the case with such felony DUI’s, the state must prove up the priors, and it was later shown that the prior DUI’s could not be proven. Once that happened, the felony was reduced to a misdemeanor DUI. Woodbury appealed, arguing that the misdemeanor DUI went beyond the 90 days, but his appeal was denied because a felony court may continue handling any lesser included misdemeanor charges. Same thing goes for Borko’s case, right? Wrong.
The court in Borko didn’t buy this argument, and granted Borko dismissal of the misdemeanor charge because Borko’s felony was dropped. This case contains a few practice tips for prosecutors, and they rarely make this sort of mistake. When the prosecutor noticed this problem, he should have simply let the defense attorney file a Motion to Dismiss/Reduce the felony grand theft to misdemeanor petit theft. Under the rules of such a dismissal, the state is granted an extension of the speedy trial time to file any appropriate misdemeanor. The mistake here was dropping the felony charge and re-filing it as a misdemeanor. A good prosecutor would have let the defense attorney file a Motion to Dismiss the felony on the grounds that the bike was not worth enough to constitute a felony, and such a motion would have permitted an extension of time for the state. I see this sort of mistake on criminal mischief cases as well, in which the initial damage estimates exceed $1,000 to make the charge a felony–only to have later estimates come in below $1,000–which make the charge a misdemeanor. One this is for certain, the prosecutor in Borko will not make this mistake again.
[As a side note here, we’ve only discussed the time limits on the state for filing charges after an arrest is made. When an arrest is not made, it is the Statute of Limitations that controls such events. I’ve got quite a bit of material on this issue, which you can find here.]