STATE OF FLORIDA, APPELLANT,
v.
MICHAEL WAYNE BROWN, APPELLEE
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The State appealed a trial court's order discharging a defendant under Florida's speedy trial rule. The court held that a defense request to "reschedule" trial constitutes a continuance that tolls the 180-day speedy trial period, and that the State had not exhausted the subsequent 90-day period to bring the defendant to trial after the discharge motion was filed.
A motion to reschedule trial is a continuance that tolls the 180-day speedy trial period. Once a defendant files a discharge motion, the State must bring him to trial within 90 days. The effect of a defense continuance carries over when a new information is filed based on the same charges. The State had not exhausted the 90-day period when the discharge order was entered.
[1] A defendant's request for and granting of a continuance removes the case from the operation of the speedy trial rule, absent specific exceptions.
[2] A motion to reschedule a trial constitutes a motion for continuance for purposes of the speedy trial rule.
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Join FLexlaw to unlock all legal intelligence“When a defendant requests and is granted a continuance, the matter is taken out of the operation of the speedy trial rule, except within the limited circumstances set forth in Rule 3.191(d)(3).”
Establishes the fundamental principle that defense continuances toll the speedy trial period.
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Join FLexlaw to unlock all legal intelligenceAppellee was charged with a crime and trial was scheduled within the 180-day speedy trial limit. Defense counsel requested a continuance due to planne…
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ORFINGER, Judge.
The State appeals an order granting a motion to discharge appellee under the speedy trial rule, Florida Rules of Criminal Procedure, 3.191. We reverse.
A detailed review of the proceedings will serve no useful purpose. It is sufficient to show that trial was scheduled on the charge against appellee well within the 180-day time limit. Shortly before the scheduled trial date, appellee’s counsel filed a motion to “reschedule” the trial because of counsel’s planned absence from the country during the trial date. Acting on this motion, the trial court entered an “Order Granting Continuance” and re-set the trial for a later date. The order recited the request for continuance by the defense and then granted the continuance. A subsequent motion by the defense for a continuance was also granted.
The trial court later granted defendant’s motion to dismiss under Rule 3.190(c)(4) and the State appealed. During the pendency of the appeal, the State filed a new information based on the same charge, and then voluntarily dismissed the pending appeal on the “C-4” motion. After various appearances on the second information, the motion for discharge appealed from here was filed and granted on the ground that the 180-day time limit had expired without defendant having been brought to trial.
When a defendant requests and is granted a continuance, the matter is taken out of the operation of the speedy trial rule,1 except within the limited circumstances set forth in Rule 3.191(dX3).2 The latter rule provides that a defendant must be tried within 90 days from the denial of his motion for discharge, when an earlier motion for continuance is attributable to the accused.
Appellee contends, however, that the first motion was only a motion to “reschedule”, not a request for continuance. We fail to understand the distinction. Florida Rules of Criminal Procedure, Rule 3.190(g), defines a continuance as “the postponement of a cause for any period of time.” Appellee’s motion to reschedule was therefore a motion for continuance for purposes of the speedy trial rule, was treated by the trial court as such and had the effect as such. Just as the 180 day period continues to run notwithstanding the filing of a new information based on the same charges,3 so does the effect of a defense continuance carry over under the same circumstances.
After defendant filed his motion for discharge here, the State was required to bring him to trial within 90 days, and this time had not expired when the order granting discharge was entered.
The order discharging appellee is quashed, and this cause is remanded to the trial court for further proceedings consistent herewith.
REVERSED and REMANDED.
FRANK D. UPCHURCH, Jr., and COBB, JJ., concur. . Butterworth v. Fluellen, 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).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Frazee, 617 So. 2d 350 (Fla. 4th DCA 1993)…aiving speedy trial rights regardless of its characterization. Blackstock v. Newman, 461 So. 2d 1021 (Fla. 3d DCA), rev. denied, 467 So. 2d 999 (Fla.1985); accord State v. (Buster) Brown, 412 So. 2d 448 (Fla. 6th DCA 1982); State v. (Michael) Brown, 394 So. 2d 218 (Fla. 5th DCA 1981). But more in point are State v. McCoy, 369 So. 2d 1027 (Fla. 3d DCA 1979), and State v. Belcher, 372 So. 2d 546 (Fla. 3d DCA 1979). In each case the defendant’s counsel advised the court that he was ready for trial but could not…
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Brownlee v. State, 427 So. 2d 1106 (Fla. 3d DCA 1983)…after 180 days had expired, Rule 3.191(d)(3) was triggered, requiring that appellant be tried within ninety days from the date his motion for discharge was denied, in that an earlier motion for continuance had been attributed to him. State v. Brown, 394 So. 2d 218 (Fla. 5th DCA 1981). He was tried on the eighty-first day after denial of the motion for discharge, well within the time limits. On count II of the information appellant was charged with display of a short-barreled shotgun while committing a felony…
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State v. Buster Dean Brown, 412 So. 2d 448 (Fla. 5th DCA 1982)…s under Butterworth v. Fluellen, 389 So. 2d 968 (Fla.1980), as any defense request to postpone a case for any period of time, whatever called, constitutes a motion for a continuance waiving speedy trial rule rights under Butterworth. State v. Brown, 394 So. 2d 218 (Fla. 5th DCA 1981). REVERSED and remanded for further proceedings. COBB and SHARP, JJ., concur. . The Florida Bar, In re Rules of Criminal Procedure, 389 So. 2d 610 (Fla.1980); See Holmes v. Leffler, 411 So. 2d 889 (Fla. 5th DCA 1982).…
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
- 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)
- Wright v. State, 387 So. 2d 1060 (Fla. 5th DCA 1980)
- State v. Harmon Eugene Register, 380 So. 2d 543 (Fla. 5th DCA 1980)