GERALD LEE DATEMA, PETITIONER,
v.
THE HONORABLE FREDERICK N. BARAD, JUDGE OF THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA, RESPONDENT
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The court held that the defendant's speedy trial rights were violated because the State failed to properly notify him of the refiled information and issue a capias.
Datema was arrested, the initial information was nolle prossed, and a second information was refiled without proper notice to Datema. Datema did not a…
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[*194] BARKDULL, Judge.
On August 1, 1978, Datema was arrested on a burglary charge. An information was filed but the State, without announcing the intention of refiling, nolle prossed the information. About two weeks later, the State refiled the information and mailed notice of same to Datema, which was returned and he did not receive the notice.
No capias was issued and Datema’s trial counsel, over counsel’s objection, was ordered to enter a plea of not guilty. The case came on for trial on January 22, 1979 and the defendant, still having no notice of the proceedings, did not appear. An alias capias was issued then. About a month later, Datema contacted his counsel, was informed of the new information and appeared for trial. The alias capias was quashed.
On March 1, Datema moved for discharge on the grounds that more than 180 days had elapsed since his arrest and further proceedings would violate his speedy trial rights. The trial court denied the motion to discharge, granted the State’s motion to void the time periods, and set trial.
When the first information was nolle prossed, Datema was no longer an accused released on bond; he was free. Thus, the prosecution, upon refiling the second information (the State), should have issued a capias for his arrest. Under these circumstances, Datema’s nonappearance is no evidence of non-availability for speedy trial purposes. See: State ex rel. Barber v. Satin, 296 So. 2d 636 (Fla. 3d DCA 1974); State ex rel. Smith v. Nesbitt, 355 So. 2d 202 (Fla. 3d DCA 1978).
Thereupon, the defendant filed a suggestion for writ of prohibition in this court and, finding that same presented a prima facie case, a rule nisi in prohibition was issued. Therefore, the rule nisi in prohibition will be made absolute.
Assuming that the trial judge will follow the dictates of this opinion, the rule absolute will not be served unless necessary.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Wells v. State, 881 So. 2d 54 (Fla. 4th DCA 2004)…ate filed a no information, the charges were refiled but the defendant was notified of his arraignment only by mail to his last known address and he received no actual notice until after the running of the speedy trial time period); Datema v. Barad, 372 So. 2d 193 (Fla. 3d DCA 1979) and cases cited therein (non-appearance does not constitute evidence of non-availability for trial when a defendant who is not in custody or on bail fails to appear pursuant to written notice instead of service of capias). Accord…
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L. G. v. State, 405 So. 2d 252 (Fla. 3d DCA 1981)…proceedings. Because L.G. was thus not properly summoned6 and was therefore not obliged to be present at the August 6 adjudicatory hearing, there was no basis to extend the speedy trial time on the ground that he was not there. See Datema v. Barad, 372 So. 2d 193 (Fla. 3d DCA 1979); Mishan v. Crews, 363 So. 2d 1178 (Fla. 1st DCA 1978); State ex rel. Smith v. Nesbitt, 355 So. 2d 202 (Fla. 3d DCA 1978). For this reason, the adjudication of delinquency is reversed and the cause remanded with directions to disch…
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State v. Gross, 874 So. 2d 1292 (Fla. 4th DCA 2004)…im. P. 3.131(j)(requiring issuance of capias upon filing of information, if person named is neither in custody nor at large on bail); see also § 932.48, Fla. Stat. (2003)(requir-ing clerk to issue capias upon filing of information); Datema v. Barad, 372 So. 2d 193 (Fla. 3d DCA 1979)(stating that nonappearance does not constitute evidence of non-availability for trial where defendant who is not in custody or on bail fails to appear pursuant to written notice rather than service of capias)(citing State ex rel.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Walker v. State, 355 So. 2d 202 (Fla. 3d DCA 1978)
- The State of Fla. ex rel. Albert Lee Barber v. Honorable Dan Satin, 296 So. 2d 636 (Fla. 3d DCA 1974)