Can the State Drop and Refile Charges Just to Buy More Time?

By: John Guidry

We’ve all seen it in movies. The prosecutor walks into the courtroom, realizes their star witness is missing, and dramatically slams a folder on the table. In Hollywood, the judge bangs the gavel and the defendant walks free forever.

In real life, it’s rarely that clean.

I recently defended a hotly contested Aggravated Battery case here in Orlando that played out exactly like a movie scene, but with a dangerous legal twist. On the day of trial, during jury selection, the State realized they couldn’t produce their key witness. Rather than face a loss, they “nolle prossed” (dropped) the case right there in the middle of voir dire.

The alleged victim found out, went ballistic, and demanded the State refile the charges. Unfortunately, the State complied. They refiled the exact same charges against my client after the speedy trial period had technically expired. They thought they had found a loophole to keep the case alive.

They were wrong.

Is the State trying to manipulate the system in your case?

Don’t let them rewrite the rules. Call John today at (407) 423-1117 for a free consultation.

The Legal Breakdown: State v. Agee

To understand how we won this, you have to understand the “Speedy Trial” game. In Florida, if you don’t waive your right to a speedy trial, the State has a strict deadline (175 days for felonies) to bring you to trial.

Here is how the State tried to cheat the clock, and how we stopped them:

• The Trap: The State dropped the charges (nolle pros) on Day 170 (approximate), just before the deadline. They then refiled the charges after the 175 days were up.
• The Argument: The prosecutor argued that because we had started jury selection (voir dire) before the drop, they had technically “satisfied” the speedy trial rule. Under Florida Rule of Criminal Procedure 3.191(c), a trial is considered “commenced” when the jury panel is sworn for voir dire.
• The Defense: I filed a “Motion to Discharge,” relying on the Florida Supreme Court case State v. Agee, 622 So. 2d 473 (Fla. 1993).
• The Law: Agee states that the government cannot unilaterally stop the clock by dropping a case just to refile it later. As the Court famously said, allowing this would “eviscerate the rule,” letting a prosecutor with a weak case simply hit “pause” whenever they felt like it.

The Ruling: The judge agreed with us. My motion successfully argued that the State cannot satisfy the speedy trial rule by indulging in a few minutes of jury questioning and then quitting. The court granted the Motion to Discharge and quashed the arrest warrant on the refiled charges.

John’s Takeaways

This case is a perfect example of why you need a defense attorney who understands the procedural chess match, not just the penal code. Here is what you need to know:

• Lesson #1: Do Not Waive Speedy Trial: Unless you absolutely have to, do not waive this right. In an overwhelmed court system like Orange County, holding the State to the fire of a 175-day deadline is one of your strongest weapons.
• “Dropped” Doesn’t Always Mean Over: A nolle prosequi is just a Latin way of saying “we’re stopping for now.” The State can, and often does, refile charges if they find new evidence or get pressure from a victim—unless the speedy trial clock stops them.
• Jury Selection Matters: The precise moment a trial “starts” is technical. While the rule says it starts when the panel is sworn, Agee prevents the State from abusing that definition to buy indefinite time.
• Weak Cases Crumble Under Pressure: The State dropped this case because they weren’t ready. By forcing them to trial (by not waiving speedy), we exposed their weakness. If we had waived speedy, they would have had months to find that witness, and my client might be in prison today.

Let’s Force Their Hand

The State counts on defendants being passive. They count on you waiving your rights so they can take their sweet time building a case against you.

If you are facing charges in Orange, Seminole, Osceola, Lake, Brevard, or Volusia County, don’t make their job easy.

Call me at (407) 423-1117. Let’s get to work.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.