DALLAS EVA WRIGHT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The speedy trial period begins to run from the initial arrest for conduct related to the charged offense, even if charges are dropped and refiled for the same criminal episode.
[1] The speedy trial time begins to run when a defendant is arrested as a result of the conduct or criminal episode giving rise to the crime charged.
[2] The speedy trial period is not avoided by the state nolle prosequi a crime and later prosecuting a new crime grounded on the same conduct or criminal episode.
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Join FLexlaw to unlock all legal intelligenceWright was arrested for receiving stolen property involving two bicycles purchased with a stolen credit card; these charges were dropped. Orange Count…
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SHARP, Judge.
Wright entered a nolo contendere plea to obtaining goods by use of a stolen credit card, and reserved his right to appeal the denial of his motion for discharge for violation of the “speedy trial” rule.1 The lower court ruled the speedy trial time did not run from Wright’s first arrest, (for which the 180 day period had run) because it involved different criminal conduct, or a different criminal episode than the one charged in this case. We disagree.
Seminole County deputies arrested Wright on August 5, 1974 in Seminole County for buying, receiving and concealing stolen property. The charge involved Wright’s possession and purchase of two ten speed bicycles from the Maitland Bike Store, in Orange County on June 25, 1974, with a stolen credit card. These charges were dropped on August 13, 1974. On August 26,1974, Orange County filed an information alleging Wright obtained the two ten speed bicycles on June 25, 1974, from the Maitland Bike Shop, by fraudulent use of a stolen credit card. Orange County deputies attempted to arrest Wright, but they were unable to locate him at the address in their records at Black-wood Avenue in Altamonte Springs. At the time Wright was arrested by the Seminole County deputies he was living on Oak-hurst, having moved there from Blackwood. He did not then know about the Orange County charges. When he heard Seminole dropped its charges against him, he moved to Deltona in Volusia County. He notified the U.S. post office and the telephone company of his new address. Wright was later arrested in Winter Park in December of 1977 on a different charge. Only then did Orange County finally arrest him on the original Orange County capias.
The “speedy trial” 180 day period begins to run when the defendant is arrested “as a result of the conduct or criminal episode giving rise to the crime charged.”2 Subsection (h)(2) of the rule provides that the speedy trial period shall not be avoided by allowing the state to nolle prosse a crime charged and later prosecute a new crime “grounded on the same conduct or criminal episode.” (Emphasis supplied). What constitutes the “same conduct” or “criminal episode” is not defined in the rule. However, it has been given a much broader scope than the test for when prosecution is barred by double jeopardy. State ex rel. Meyer v. Keough, 325 So. 2d 75 (Fla. 2d DCA 1976), cert. denied, 336 So. 2d 601 (Fla.1976); State v. Boren, 273 So. 2d 415 (Fla. 3d DCA 1973); Bryant v. Blount, 261 So. 2d 847 (Fla. 1st DCA 1972), cert. denied, 267 So. 2d 82 (Fla.1972).
Both of the charges against Wright involved his obtaining the same two ten speed bikes from the same store, on the same day. The fact that Wright allegedly obtained the bikes by use of a stolen credit card in Orange County, and subsequently held them in Seminole County might allow the prosecution to charge Wright with the commission of two different crimes,3 but it is clear both crimes grew out of the same criminal episode. Richardson v. State, 340 So. 2d 1198 (Fla. 4th DCA 1976).
State v. Evans, 338 So. 2d 51 (Fla. 4th DCA 1976), cert. denied, 346 So. 2d 1248 (Fla.1977) is not controlling because in Evans, the defendant was charged with committing different acts of arson at different times, against different property and victims. Had Wright been charged with obtaining different merchandise from different stores, even if it were with the same stolen credit card on the same day, we would have found Evans persuasive.
We also reject the state’s argument that the “speedy trial” period did not run because Wright left the county and was not “continuously available” for trial. Fla.R. Crim.P. 3.191(a)(1) necessitates a finding that the defendant was “continuously available for trial during such period of time for trial” prior to granting the defendant’s motion for discharge. The lower court drew no such conclusion, nor was it required to do so since it denied the defendant’s motion for discharge. However its findings clearly show Wright was “continuously available” for trial during the running of the 180 day period. Orange County failed to arrest Wright because it had an incorrect address.4 The court found that Wright left his forwarding address with the U.S. post office and the telephone company. There was no testimony or finding that Wright was evading arrest in any way.5
The conviction is reversed and the defendant is discharged.
REVERSED.
DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur. . Fla.R.Crim.P. 3.191(a)(1).
. Fla.R.Crim.P. 3.191(a)(1). Wiggins v. State, 384 So. 2d 43 (Fla. 1st DCA 1980).
. State v. Boren, 273 So. 2d 415 (Fla. 3d DCA 1973); Bryant v. Blount, 261 So. 2d 847 (Fla. 1st DCA 1972), cert. denied, 267 So. 2d 82 (Fla.1972).
. State ex rel. Kennedy v. McCauley, 265 So. 2d 547 (Fla. 4th DCA 1972).
. See State ex rel. Green v. Patterson, 279 So. 2d 362 (Fla. 2d DCA 1973).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Stewart v. State, 491 So. 2d 271 (Fla. 1986)…state from circumventing the speedy trial rule and extending the applicable time period by nol prossing a charge and refiling a new information when the time limit approaches. See Fyman v. State, 450 So. 2d 1250 (Fla. 2d DCA 1984); Wright v. State, 387 So. 2d 1060 (Fla. 5th DCA 1980). The state could not have violated rule 3.191(h)(2) by nol pross-ing the information when the defendant had already waived his rights under the rule. State v. Condon, 444 So. 2d 73 (Fla. 4th DCA 1984); State v. Kerper, 393 So. 2d…
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State v. Dorian, 619 So. 2d 311 (Fla. 3d DCA 1993)…es a new information charging delivery of cannabis arising out of same criminal episode; defendant files motion for discharge; held trial court properly granted the motion); compare State v. Kelly, 407 So. 2d 257 (Fla. 2d DCA 1981); Wright v. State, 387 So. 2d 1060, 1062 (Fla. 5th DCA 1980); State ex rel. Williams v. Cowart, 281 So. 2d 527, 529 (Fla. 3d DCA), cert. denied, 286 So. 2d 11 (Fla. 1973); see abo State v. McDonald, 538 So. 2d 1352 (Fla. 2d DCA 1989) (defendant arrested for two misdemeanors: petit th…
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State v. Brown, 394 So. 2d 218 (Fla. 5th DCA 1981)…389 So. 2d 968 (Fla.1980); State ex rel. Butler v. Cullen, 253 So. 2d 861 (Fla.1971); State v. Register, 380 So. 2d 543 (Fla. 5th DCA 1980). . State v. Bufford, 383 So. 2d 928 (Fla. 5th DCA 1980). . Rule 3.191(h)(2), Fla.R.Cr.P.; Wright v. State, 387 So. 2d 1060 (Fla. 5th DCA 1980).…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Bryant v. Uriel Blount, Jr., 261 So. 2d 847 (Fla. 1st DCA 1972)
- Ernie Richardson v. State, 340 So. 2d 1198 (Fla. 4th DCA 1976)
- State v. Patterson, 279 So. 2d 362 (Fla. 2d DCA 1973)
- State v. Boren, 273 So. 2d 415 (Fla. 3d DCA 1973)
- Leiseder v. State, 265 So. 2d 547 (Fla. 2d DCA 1972)
- The State of Fla. ex rel. Willie Preston Kennedy, Jr. v. McCAULEY, 265 So. 2d 547 (Fla. 4th DCA 1972)
- State of Fla. ex rel. Michael W. Meyer & Dale James Schultz v. The Honorable Lawrence E. Keough, 325 So. 2d 75 (Fla. 2d DCA 1976)
- Wiggins v. State, 384 So. 2d 43 (Fla. 1st DCA 1980)
- Peoples GAS Sys., Inc. v. Zeller, 267 So. 2d 82 (Fla. 1972)
- Encore, Inc. v. Olivetti Corp. OF Am., 267 So. 2d 82 (Fla. 1972)