STATE OF FLORIDA, APPELLANT,
v.
THOMAS W. KERPER, APPELLEE
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A defendant's motion for a continuance waives the speedy trial rule, and the time limitations do not restart until a subsequent demand for trial or denial of discharge.
After the State nolle prossed charges and refiled them, the defendant moved for discharge under the speedy trial rule. The defendant had previously ob…
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COWART, Judge.
After the defendant-appellee had been properly granted a continuance the State nolle prossed the criminal charges because of the unavailability of a State’s witness at trial and thereafter filed a new information charging appellee with the same crime based on the same facts. More than 180 days after the date appellee had been taken into custody under the original information appellee moved for discharge under the speedy trial rule, Florida Rule of Criminal Procedure 3.191. The trial court granted the discharge. We reverse.
By moving for and obtaining a continuance appellee took this case out of the operation of the speedy trial rule and the time limitations of the rule are reactivated only by the denial of his motion for discharge or by his subsequent demand for speedy trial. Batterworth v. Fluellen, 389 So. 2d 968 (Fla.1980), State ex rel. Butler v. Cullen, 253 So. 2d 861 (Fla.1971), State v. Bufford, 383 So. 2d 928, 929 (Fla. 5th DCA 1980).
In Stevens v. State, 383 So. 2d 1156 (Fla. 5th DCA 1980), this court held that when two charges arise from the same criminal conduct or episode, a waiver of speedy trial in the first prosecution, which was nolle prossed, was also a waiver for the second.
When appellee was granted a continuance the speedy trial rule, including the provisions of Florida Rule of Criminal Procedure 3.191(b)(2) relating to nolle prosequi, became inapplicable to his prosecution and remained inapplicable to the subsequent prosecution based on the same criminal conduct or episode. The trial court was in error in discharging appellee and the order of discharge is reversed and the cause remanded for further proceedings.1
ORFINGER and FRANK D. UP-CHURCH, Jr, JJ„ concur. . Under Butterworth and Cullen this opinion acts as a denial of appellee’s motion for discharge and thus requires appellee to be brought to trial within ninety days pursuant to Florida Rule of Criminal Procedure 3.191(d)(3).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Sparkman v. McCLURE, 498 So. 2d 892 (Fla. 1986)…speedy trial grounds. County court judge Charles D. McClure, Jr., denied this motion on July 31, 1984, thereby reinstating Sparkman's speedy trial rights. Butterworth in and for Broward County v. Fluellen, 389 So. 2d 968 (Fla.1980); State v. Kerper, 393 So. 2d 77 (Fla. 5th DCA 1981). On or about that date the clerk of the Leon County Court placed form CCC-95 into the court file. This form contained all the pertinent information relating to the disposition of Sparkman’s case, including the case number, the pr…
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Stewart v. State, 491 So. 2d 271 (Fla. 1986)…o. 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 77 (Fla. 5th DCA 1981). Further, we reject Stewart’s argument that the speedy trial period in the instant case expired on day ninety. At the time Stewart requested the continuance, he stood charged with grand theft, for which the applicable speedy tri…
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State v. Condon, 444 So. 2d 73 (Fla. 4th DCA 1984)…4th DCA 1975). Accord Stevens v. State, 383 So. 2d 1156 (Fla. 5th DCA 1980). The speedy trial rule is subsequently brought back into play only by denial of defendant’s motion for discharge or by defendant’s demand for speedy trial. State v. Kerper, 393 So. 2d 77, 78 (Fla. 5th DCA 1981) (citing Butterworth v. Fluellen, 389 So. 2d 968 (Fla.1980); State ex rel. Butler v. Cullen, 253 So. 2d 861 (Fla.1971); State v. Bufford, 383 So. 2d 928 (Fla. 5th DCA 1980)). In the instant case, neither of these had occurred.…
Authorities Cited
- State of Fla. ex rel. Isaac Don Butler & Gerald Nickles v. Honorable Ralph O. Cullen, 253 So. 2d 861 (Fla. 1971)
- Honorable Robert A. Butterworth v. Fluellen, 389 So. 2d 968 (Fla. 1980)
- State v. Bufford, 383 So. 2d 928 (Fla. 5th DCA 1980)
- Udell Shirley Stevens v. State, 383 So. 2d 1156 (Fla. 5th DCA 1980)