CHARLES WASHINGTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Charles Washington was convicted of dealing in stolen property in a non-jury trial, but the Florida District Court of Appeal reversed because the trial court abused its discretion by denying his motion for continuance after the State filed a surprise second amended information on the morning of trial charging a different crime.
The trial court abused its discretion in denying the continuance. Although a demand for speedy trial generally cannot be waived, an exception exists for matters arising after the demand that reasonably could not have been anticipated. The defendant could not have anticipated the State's filing of a second amended information on trial day that completely changed the charges.
[1] A trial court abuses its discretion by denying a motion for continuance when the State files a second amended information on the morning of trial, changing the charges ag…
[2] A defendant who has filed a demand for a speedy trial may seek a continuance for charges arising from matters that could not have been reasonably anticipated.
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Join FLexlaw to unlock all legal intelligence“The crime of dealing in stolen property involves trafficking, or endeavoring to traffic, in property one knows, or should know, to be stolen property. The elements of this crime are obviously different from the elements which must be proved in a burglary or grand theft case.”
Establishes that despite factual similarity, the crimes have distinct legal elements
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Join FLexlaw to unlock all legal intelligenceWashington was charged by information with burglary and grand theft. He filed a demand for speedy trial. On the morning of trial, the State filed a se…
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MOORE, Judge.
In a non-jury trial, appellant was convicted of dealing in stolen property. He argues four points for reversal of his conviction, only one of which has merit.
The issue presented is whether the trial court abused its discretion in denying appellant’s motion for continuance made on the morning of trial.
Appellant was charged by information with the crimes of burglary and grand theft. Subsequently, he filed a demand for speedy trial pursuant to Fla.R.Crim.P. 3.191(c). Trial was set in due course and on the morning thereof the State filed a second amended information without leave of court. The new information charged appellant with the crime of dealing in stolen property, contrary to Section 812.019(1), Florida Statutes (1977). Although he was ready to proceed with his defense to the original information, the appellant advised the court that he was not ready to proceed on the new charge and requested a continuance. The trial judge felt that the new charge arose out of the same transaction and, in light of appellant’s demand for a speedy trial, denied the motion.
The crime of dealing in stolen property involves trafficking, or endeavoring to traffic, in property one knows, or should know, to be stolen property. The elements of this crime are obviously different from the elements which must be proved in a burglary or grand theft case. The mere fact that the property involved in the trafficking charge may have been the same property which was the subject of the burglary and grand theft charges does not mean that the charges themselves arose out of the same transaction.
Moreover, although Fla.R.Crim. Pro. 3.191(c) prohibits waiver of a demand for a speedy trial, an exception is made as to matters arising after the demand, which reasonably could not have been anticipated. We find no way the appellant could have anticipated the State’s filing of a second amended information on the day of trial, completely changing the charges with which he was accused. The failure to grant a continuance under these circumstances was an abuse of discretion.
This cause is reversed and remanded for a new trial.
REVERSED AND REMANDED.
BERANEK, J., and WOODROW M. MELVIN, Associate Judge, concur.
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State v. Naveira, 873 So. 2d 300 (Fla. 2004)…2d 445, 447 (Fla. 2d DCA 1975) (finding no problem with the State’s filing the information 171 days after arrest, but holding that the defendant’s motion for continuance should have been granted, and remanding for a new trial); Washington v. State, 378 So. 2d 852, 853 (Fla. 4th DCA 1979) (finding that the trial court abused its discretion in denying a defendant’s motion for continuance where, after the demand for speedy trial was made and on the morning of trial, the State filed a second amended information…
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Elvestre Toussaint v. State, 755 So. 2d 170 (Fla. 4th DCA 2000)…tations omitted). Although this court has held that a defendant may be prejudiced where the elements of the crime after the information is amended are “obviously different” from the crime charged in the original information, see Washington v. State, 378 So. 2d 852, 853 (Fla. 4th DCA 1979), in this case the elements of the crime of sexual battery are the same under both statutes. The issue in this case is whether the change of the age in the crime charged constitutes the charging of a different crime. We held…
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Hahn v. State, 626 So. 2d 1056 (Fla. 4th DCA 1993)…t had prepared for trial on the information initially provided, he was under no obligation to fore-go his right to trial in order to accommodate the state’s circumvention of the Florida Rules of Criminal Procedure). Further, in Washington v. State, 378 So. 2d 852 (Fla. 4th DCA 1979) we expressly disapproved a substantive amendment of an information on the day of trial, when the amendment prejudiced the defendant. In Washington, the state amended the information on the day of trial from burglary and grand the…
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