
    Bobby Lee BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 95-3308.
    District Court of Appeal of Florida, First District.
    June 23, 1997.
    Steven L. Seliger of Garcia and Seliger, Quincy, for Appellant.
    Robert A. Butterworth, Attorney General; Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.
   LAWRENCE, Judge.

Bobby Lee Brown (Brown) on direct appeal seeks review of his convictions and sentences, arguing that he is entitled to be forever discharged under Florida’s “speedy trial” rule. We affirm.

A jury found Brown guilty of attempted second-degree murder, armed kidnapping with a firearm, armed robbery with a firearm, and aggravated assault on a law enforcement officer. Brown committed these crimes on September 7, 1994, in Leon County, when he robbed a Burger King, shot one employee in the chest at point-blank range, and took another employee hostage for the duration of a high-speed chase, during which Brown repeatedly put a gun to the hostage’s head, and pointed a gun at a pursuing police officer. The trial judge, upwardly departing from the guidelines, sentenced Brown to life sentences for armed kidnapping with a firearm and armed robbery with a firearm, and to fifteen-year sentences for attempted second-degree murder and aggravated assault on a law enforcement officer. The judge imposed all sentences concurrently.

We are asked to address only one issue in this case — the application of Florida’s speedy trial rule, Florida Rule of Criminal Procedure 3.191, to the facts. Brown was taken into custody on November 30, 1994. On June 7,1995, he filed a “Motion To Dismiss” based upon the failure to bring him to trial within 175 days. On June 13,1995, the case was set for trial on June 19, 1995. On the same day, the prosecutor became acutely ill, requiring emergency surgery which incapacitated her for at least two weeks. Her illness was not an issue and defense counsel stipulated that it was legitimate. Brown’s only argument in the trial court was that the State had not been diligent in bringing the case to trial. On June 16, 1995, the trial judge granted the State’s motion for an extension of the time period for bringing Brown to trial, based upon a finding that the prosecutor’s illness constituted an exceptional circumstance under Rule 3.191©. Trial was reset for July 17, 1995, and in fact commenced on that date before another judge.

Rule 3.191 contains two time periods relevant to the instant ease: the basic 175-day period during which one charged with a felony must be tried, and a 5/10-day recapture window period (recapture window) which is triggered when a defendant invokes the rule.

Brown and the State agree that an “exceptional circumstances” extension is available under the rule. The narrow issue presented for our determination is whether the rule authorizes an extension of the speedy trial time when the extension is made during the recapture window (for a reason which constitutes an “exceptional circumstance” under 3.191©), or whether an “exceptional circumstances” extension is valid only when granted before expiration of the basic 175-day period. We conclude that the rule authorizes an “exceptional circumstances” extension in either time period. The instant trial judge therefore properly exercised her discretion in' granting an extension based on exceptional circumstances occurring during the recapture window.

We reach this conclusion based upon the plain language of the rule. Subdivision (i) provides in relevant part: “The periods of time established by this rule may be extended provided the period of time sought to be extended has not expired at the time the extension was procured.” No remedy is available to a defendant moreover until the court makes “the required inquiry under subdivision (j)”; subdivision (j) also refers to “periods” of time. The extension sought and obtained in the instant case occurred during the recapture window; the recapture window furthermore had not expired when the extension was procured. There are several periods of time provided for in rule 3.191. The recapture window is one of the periods of time established by the rule. Fla. R.Crim. P. 3.191(p)(3). More importantly, however, the rule by its general language is inclusive of all periods of time provided in the rule and does not in any way limit exceptional circumstances to the basic 175-day time period. The rule does not limit an extension of time to a single period.

Any interpretation other than that based on the plain language of the rule would reach an absurd result. In the instant case, according to Brown’s position, an emergency surgery arising in the basic 175-day period would be granted an exceptional-circumstance extension, but an emergency surgery arising during the recapture window would not qualify for an exceptional-circumstance extension. There is no logical reason to restrict emergencies to the basic 175-day period. Neither is there anything sacred about requiring a defendant to be brought to trial before expiration of the recapture period or its equivalent. Indeed, when an exceptional-circumstance extension is granted during the basic 175-day period, it is contemplated by the rule, which contains no arbitrary time limitation, that it may well extend beyond a time equivalent to the recapture period.

Florida adopted its first speedy trial court rule in 1971, In re Florida Rules of Criminal Procedure, 245 So.2d 33 (Fla.1971), which contained a basic 180-day time period for bringing a defendant to trial, without a recapture window. The Florida Supreme Court amended the rule in 1984 to provide for the current 5/10 day recapture window. The purpose of the speedy trial rule is self-evident. It was never intended as strategy for dismissal and discharge. This court has said, with respect to the purpose of the rule:

Before the provision [5/10 day recapture window] was added to the rule in 1984, defendants with active cases were sometimes able to secure discharges because prosecutors overlooked speedy trial deadlines. In order to avoid the automatic discharge provision provided for in the pre-1984 rule, the current rule provides a reminder to the prosecutor that speedy trial is about to run. Therefore, the present rule continues to insure that a diligent defendant will be brought to trial within the periods provided in the rule, but it avoids the sometimes draconian remedy of automatic discharge following mere prose-cutorial oversight.

State v. Agee, 588 So.2d 600, 604 (Fla. 1st DCA 1991), approved, 622 So.2d 473 (Fla.1993). Any interpretation of the current language of the rule limiting an exceptional-circumstance extension to the basic 175-day period and excluding such an extension from the recapture window, serves only to exacerbate the draconian remedy described in Agee and to perpetuate the unintended strategy of dismissal and discharge.

We are mindful of the cases from our sister courts which appear to announce a blanket rule regarding exceptional-circumstances extensions, although on facts different from those in the instant case, or with no discussion of the facts. Vallieres v. Grossman, 573 So.2d 196, 197 (Fla. 4th DCA 1991) (holding that “an extension of speedy trial time cannot be obtained for ‘exceptional circumstances’ after expiration of the 175 days”); Heller v. State, 601 So.2d 642, 642 (Fla. 3d DCA 1992) (“The fifteen-day window period provided the State by rule 3.191(i)(3), Florida Rules of Criminal Procedure, to proceed with a trial of the defendant after the speedy trial period has expired and a motion for discharge has been filed, may not be extended for exceptional circumstances by a motion filed within the window period.”). We certify conflict with those cases and their progeny to the extent that they announce a blanket rule.

We also certify the following question to the supreme court as one of great public importance:

IS AN EXCEPTIONAL CIRCUMSTANCE EXTENSION UNDER RULE 3.191© VALID, WHEN MADE AND OBTAINED DURING THE 5/10-DAY RECAPTURE WINDOW PROVIDED FOR IN RULE 3.191(p)(3), OR IS IT LIMITED ONLY TO AN EXTENSION MADE AND OBTAINED BEFORE EXPIRATION OF THE BASIC 175-DAY PERIOD PROVIDED IN RULE 3.191(a)?

We accordingly affirm Brown’s judgments apd sentences entered by the trial court.

MICKLE, J., concurs.

WEBSTER, J., dissents with opinion.

WEBSTER, Judge,

dissenting.

Appellant maintains that he is entitled to discharge under the speedy trial rule on either of two alternative legal theories. The majority only addresses one of those theories — whether the time within which a defendant must be brought to trial may be extended based upon a finding by the trial court that an “exceptional circumstance” has arisen after the 175-day speedy trial period has expired, during the 15-day recapture window. Although I disagree with both the majority’s analysis and its conclusion regarding that theory, I would find it unnecessary to address that theory because, in my opinion, appellant is clearly entitled to discharge on his alternative theory — that the trial court abused its discretion when it held that an “exceptional circumstance” had arisen. Accordingly, I dissent.

I. Lack of an “Exceptional Circumstance”

On June 7, 1995, appellant filed a facially sufficient motion alleging that he was entitled to discharge pursuant to Florida Rule of Criminal Procedure 3.191 (the speedy trial rule) because, through no fault of his own, he had not been brought to trial, although more than 175 days had passed since his arrest on felony charges. On June 13, fewer than five business days after the motion had been filed, the trial court held the hearing required by rule 3.191(p)(3), and set appellant’s trial for June 19, which was within the 10-day window afforded by that subdivision. Subsequently, on June 16, the state filed a motion requesting that the trial be postponed based on the “exceptional circumstance” that “the assigned prosecutor is not available due to medical condition requiring said prosecutor to remain home for two weeks due to physical illness.” Also on June 16, the trial court held an emergency hearing on the state’s motion.

At the June 16 hearing, “the assigned prosecutor” was present. While she was testifying about the nature of her sudden medical problem, appellant’s attorney agreed that she was “ill and [that] her illness [wa]s legitimate.” However, appellant’s attorney objected to any extension of the speedy trial period. During the hearing, the prosecutor who was representing the state told the trial court that he “st[oo]d in for counsel all the time and d[id] trials,” but that, based on “the severity of the charges ... and the complexity of the case,” he “felt ... that it would be a disservice and an injustice to the State to go forward ... with one weekend’s preparation” on June 19. The successor prosecutor said that it was for those reasons that the state was requesting an extension, but that he could “be prepared” and “available to try [the case] within seven days.” At that point, over the objection of appellant’s attorney, the trial court held that an “exceptional circumstance” had arisen, as contemplated by rule 3.191(Z), justifying an extension pursuant to rule 3.191(i). Accordingly, it continued the trial to July 17, on which date the trial commenced.

Appellant now argues that the trial court abused its discretion when it held that an “exceptional circumstance” had arisen, justifying an extension of the speedy trial period. Assuming for purposes of this argument that the majority’s interpretation of rule 3.191 is correct, I nevertheless agree that the trial court committed a clear abuse of discretion when it held that an “exceptional circumstance” had arisen.

Rule 3.191(i) provides that:

The periods of time established by this rule may be extended provided the period of time sought to be extended has not expired at the time the extension was procured. Such an extension may be procured:
(2) by written or recorded order of the court on the court’s own motion or motion by either party in exceptional circumstances as hereafter defined in subdivision (f) [now subdivision (l) ].

Rule 3.191(i) reads:

As permitted by subdivision (i) of this rule, the court may order an extension of the time periods provided under this rule when exceptional circumstances are shown to exist. Exceptional circumstances shall not include general congestion of the court’s docket, lack of diligent preparation, failure to obtain available witnesses, or other avoidable or foreseeable delays. Exceptional circumstances are those that as a matter of substantial justice to the accused or the state or both require an order by the court. Such circumstances include:
(1) unexpected illness, unexpected incapacity, or unforeseeable and unavoidable absence of a person whose presence or testimony is uniquely necessary for a full and adequate trial;
(2) a showing by the state that the case is so unusual and so complex, due to the number of defendants or the nature of the prosecution or otherwise, that it is unreasonable to expect adequate investigation or preparation within the periods of time established by this rule;
(3) a showing by the state that specific evidence or testimony is not available despite diligent efforts to secure it, but will become available at a later time;
(4) a showing by the accused or the state of necessity for delay grounded on developments that could not have been anticipated and that will materially affect the trial;
(5) a showing that a delay is necessary to accommodate a eodefendant, when there is reason not to sever the eases in order to proceed promptly with trial of the defendant; and
(6) a showing by the state that the accused has caused major delay or disruption of preparation of proceedings, as by preventing the attendance of witnesses or otherwise.

The trial court based its decision to set the trial beyond the recapture window afforded by rule 3.191(p)(3) on the fact that the assigned prosecutor was “medically incapacitated.”

A finding that an “exceptional circumstance” justifying extension of the speedy trial period exists is subject to the abuse of discretion standard of review. E.g., Talton v. State, 362 So.2d 686 (Fla. 4th DCA 1978), cert. denied, 370 So.2d 462 (Fla.1979). Applying that standard of review to the facts of this case, I am of the opinion that the trial court clearly abused its discretion when it held that such an “exceptional circumstance” had arisen.

The 15-day recapture window afforded by rule 3.191(p)(3) is actually “more properly viewed as two separate time periods, one for the hearing (five days) and one for trial (ten days).” Baxter v. Downey, 581 So.2d 596, 599 (Fla. 2d DCA 1991). Because the period within which the hearing must be held is less than seven days, “intermediate Saturdays, Sundays, and legal holidays [must] be excluded in the computation.” Fla. R.Crim. P. 3.040. See State v. Edwards, 528 So.2d 120 (Fla. 5th DCA), review denied, 534 So.2d 399 (Fla.1988); Ricci v. Parker, 518 So.2d 284 (Fla. 2d DCA 1987), review denied, 519 So.2d 988 (Fla.1988). The hearing on appellant’s motion for discharge was timely held on June 13, because the motion had been filed on June 7, which was a Wednesday, and the intermediate Saturday and Sunday had to be excluded from the computation. Accordingly, pursuant to rule 3.191(p)(3), the trial could have been commenced as late as June 23, ten days after the June 13 hearing. Edwards; Ricci. At the emergency hearing held on June 16, the successor prosecutor said that, while he could not be ready in three days (by June 19), he could be ready in seven (or, by June 23). Thus, by the state’s own concession, it could have been prepared to try the case within the recapture window. Given this concession, I can perceive no justification for the trial court’s decision to postpone the trial until July 17, which was well outside the recapture window. While the sudden and unexpected medical emergency experienced by the prosecutor originally assigned to the ease might have been a sufficiently “exceptional circumstance” to justify an extension of the speedy trial period pursuant to rule 3.191(i )(1) had it been established that her “presence ... [wa]s uniquely necessary for a full and adequate trial,” the trial court made no such finding. In fact, had it made such a finding, it seems to me that it would have been clearly erroneous in light of the successor prosecutor’s representations that he “st[oo]d in for counsel all the time and d[id] trials,” and that he “e[ould] be prepared to try this case” and “available to try it within seven days.” Because of this concession by the state, I would hold that the trial court abused its discretion when it extended the speedy trial period, postponing the trial more than three weeks beyond the end of the recapture window. Such a holding would, of course, render it unnecessary to address the issue which is the subject of the majority’s opinion. However, because I believe that the majority has incorrectly analyzed that issue, leading it to reach an erroneous conclusion, I shall now express my views with regard thereto.

II. “Exceptional Circumstance” Extension Not Permitted During Recapture Window

Appellant filed a motion claiming that he had not been brought to trial within 175 days of his arrest on felony charges. Rule 3.191(a) states that, when a felony trial is not commenced within 175 days of the arrest, “the defendant shall be entitled to the appropriate remedy as set forth in subdivision (p).” Subdivision (p) requires that, before the remedy set out in paragraph (3) is applied, the trial court make the inquiry set out in subdivision (j). Subdivision (j) states that

a pending motion for discharge shall be granted by the court unless it is shown that:
(1) a time extension has been ordered under (i) and that extension has not expired;
(2) the failure to hold trial is attributable to the accused, a codefendant in the same trial, or their counsel;
(3) the accused was unavailable for trial under subdivision (k); or
(4) the demand referred to in subdivision (g) is invalid.

No “time extension ha[d] been ordered under (i)” before appellant filed his motion for discharge. Likewise, none of the other circumstances identified in subdivision (j) as sufficient to prevent granting appellant’s motion for discharge existed. Accordingly, it would appear that appellant was entitled to the remedy set forth in rule 3.191(p)(3) — i.e., a trial which commenced within the recapture window. Because that did not occur, it would seem, further, that appellant was entitled to “be forever discharged from the crime[s]" with which he was charged, as contemplated by that provision.

The majority concludes that appellant was not entitled to be discharged because the trial court properly granted a motion filed by the state after the 175-day speedy trial period had expired, requesting an extension of the speedy trial period because of an “exceptional circumstance” that arose after the 175-day period had expired. It reaches this conclusion based upon what it finds to be “the plain language of the rule.” In particular, it determines that the first sentence of rule 3.191(i), which states that “[t]he periods of time established by this rule may be extended provided the period of time sought to be extended has not expired at the time the extension was procured,” was intended to permit an extension of the 175-day speedy trial period based upon the occurrence of an “exceptional circumstance” after that period has run, provided that the 15-day recapture window afforded by rule 3.191(p)(3) has not yet run. I am unable to agree.

It seems to me relatively clear from a reading of the entire rule that the phrase “periods of time” in rule 3.191(i) is intended to refer to the speedy trial periods set out in subdivisions (a) and (b) — i.e., 90 days without demand if the offense charged is a misdemeanor, and 175 days if it is a felony; and 60 days following a demand. The phrase is not intended to include the 15-day recapture window afforded by rule 3.191(p)(3). Every other court which has addressed this precise issue has so held. Tascarella v. Seay, 564 So.2d 205 (Fla. 4th DCA), review denied, 569 So.2d 1280 (Fla.1990); Vallieres v. Grossman, 573 So.2d 196 (Fla. 4th DCA 1991); J.T. v. State, 601 So.2d 283 (Fla. 3d DCA 1992); Heller v. State, 601 So.2d 642 (Fla. 3d DCA 1992). Thus, the speedy trial period may not be extended because of an “exceptional circumstance” which arises during the recapture window, but after the speedy trial period has run. I find further support for such a reading in the history of the rule.

As initially adopted, rule 3.191 (then 1.191) included no recapture window. In re Florida Rules of Criminal Procedure, 245 So.2d 33 (Fla.1971). A defendant was entitled to automatic discharge if not brought to trial within the speedy trial period unless, prior to its expiration, the trial court had entered an order extending the period for one of the specified reasons. E.g., Morrow v. State, 458 So.2d 312 (Fla. 5th DCA 1984). The substance of what is now subdivision (p) was added to the rule in 1984. The Florida Bar Re: Amendment to Rules — Criminal Procedure, 462 So.2d 386, 387-88 (Fla.1984). As this court has previously stated, the intent behind that addition was to prevent defendants from going free because a prosecutor had merely overlooked the speedy trial deadline, by affording the state a fair opportunity to bring the defendant to trial — i.e., by affording a brief recapture window. State v. Agee, 588 So.2d 600, 604 (Fla. 1st DCA 1991), approved, 622 So.2d 473 (Fla.1993). Such an intent is clear from the Committee Note:

The intent of (i)(4) [now (p)(3) ] is to provide the state attorney with 15 days within which to bring a defendant to trial from the date of the filing of the motion for discharge....
This section provides that, upon failure of the prosecution to meet the mandated time periods, the defendant shall file a motion for discharge, which will then be heard by the court within 5 days. The court sets trial of the defendant within 10 additional days. The total 15 day period was chosen carefully by the committee, the consensus being that the period was long enough that the system could, in fact, bring to trial a defendant not yet tried, but short enough that the pressure to try defendants within the prescribed time period would remain. In other words, it gives the system a chance to remedy a mistake; it does not permit the system to forget about the time constraints. It was felt that a period of 10 days was too short, giving the system insufficient time in which to bring a defendant to trial; the period of 30 days too long, removing incentive to maintain strict docket control in order to remain within the prescribed time periods.

462 So.2d at 388.

It seems to me relatively clear that the 15-day recapture window afforded by what is now rule 3.191(p)(3) was intended to provide the state with a grace period of last resort to save its case from dismissal for failure to comply with the time periods mandated by the speedy trial rule. A prosecutor who must rely on the 15-day recapture window does so at his or her peril if the trial cannot be scheduled within that window through no fault of the defendant. To permit the state to extend the speedy trial period after it has run, during the recapture window, would be inconsistent with the limited nature of the relief intended by that provision. A strict interpretation of the provision reinforces the state’s obligation under the rule to bring the defendant to trial within the speedy trial period, or to file a motion seeking an extension of that period before it has run.

It might appear that the interpretation I am suggesting exalts form over substance. However, one must remember that the “speedy trial rule was promulgated in order to promote the efficient operation of the court system and to act as a stimulus to prosecutors to bring defendants to trial as soon as practicable, thus minimizing the hardships placed upon accused persons awaiting trial.” Lewis v. State, 357 So.2d 725, 727 (Fla.1978). In this case, the state has only itself to blame for its predicament. Appellant was arrested on November 30, 1994, for offenses which occurred on September 7 of that year. The initial information was not filed until March 27, 1995; and appellant was not arraigned until April 18, 1995, when he entered not guilty pleas. At the hearing on the state’s motion to extend the speedy trial period, held on June 16, 1995, appellant’s counsel represented that the state had done nothing to move the case to trial between the arraignment and June 7, 1995, when appellant’s motion for discharge was filed. The state did not dispute that representation, and the record does not reflect any activity. In my opinion, it is clear from the record that this is not a case where the state was diligently moving toward trial, and merely overlooked the speedy trial deadline. Rather, this is precisely the type of case for which the speedy trial rule was designed.

III. Conclusion

I would reverse and remand, with directions that appellant’s convictions and sentences be vacated, and that appellant be discharged. I would base the decision on the conclusion that the trial court clearly abused its discretion when it granted the state’s motion to extend the speedy trial period, thereby making it unnecessary to reach the issue addressed by the majority. Because the majority affirms, I dissent. 
      
      . It is unclear from the record whether the motion was filed on June 7, June 8, or June 9, 1995. The certificate of counsel reflects service on the State on June 7, 1995, but the Clerk’s filing data does not appear on the motion.
     
      
      . The record does not contain the order setting the case for trial, but this allegation is contained in the State's "Motion For Short Hearing To Clarify Defendant Understands His Rights To Speedy Trial and Right To Discovery And Has Made An Informed Choice As To Those Rights.”
     
      
      . Subdivision (p) provides:
      Remedy for Failure to Try Defendant within the Specified Time.
      (1) No remedy shall be granted to any defendant under this rule until the court has made the required inquiry under subdivision (j).
      (2) The defendant may, at any time after the expiration of the prescribed time period, file a notice of expiration of speedy trial time.
      (3) No later than 5 days from the date of the filing of a notice of expiration of speedy trial time, the court shall hold a hearing on the notice and, unless the court finds that one of the reasons set forth in subdivision (j) exists, shall order that the defendant be brought to trial within 10 days. A defendant not brought to trial within the 10-day period through no fault of the defendant, on motion of the defendant or the court, shall be forever discharged from the crime.
      (Emphasis added.)
     
      
      . Subdivision (Z) provides:
      Exceptional Circumstances. As permitted by subdivision (i) of this rule, the court may order an extension of the time periods provided under this rule when exceptional circumstances are shown to exist. Exceptional circumstances shall not include general congestion of the court's docket, lack of diligent preparation, failure to obtain available witnesses, or other avoidable or foreseeable delays. Exceptional circumstances are those that as a matter of substantial justice to the accused or the state or both require an order by the court. Such circumstances include:
      
      
        (1)unexpected illness, unexpected incapacity, or unforeseeable and unavoidable absence of a person whose presence or testimony is uniquely necessary for a full and adequate trial.
      (Emphasis added.)
     
      
      .Subdivision (j) provides:
      Delay and Continuances; Effect on Motion. If trial of the accused does not commence within the periods of time established by this rule, a pending motion for discharge shall be granted by the court unless it is shown that:
      (1) a time extension has been ordered under (i) and that extension has not expired;
      (2) the failure to hold trial is attributable to the accused, a codefendant in the same trial, or their counsel;
      (3) the accused was unavailable for trial under subdivision (k); or
      (4) the demand referred to in subdivision (g) is invalid.
      If the court finds that discharge is not appropriate for reasons under (2), (3), or (4), the pending motion for discharge shall be denied, provided, however, that trial shall be scheduled and commence within 90 days of a written or recorded order of denial.
      (Emphasis added.)
     
      
      . Florida Rules of Criminal Procedure 1996.
     