PAUL BRISENO, ET AL., PETITIONERS,
v.
THE HONORABLE ROBERT R. PERRY, ETC., RESPONDENT
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A criminal defendant sought a writ of prohibition after his speedy trial period expired, arguing he was entitled to discharge because no written order extending the deadline was filed before the period ran. The court held that a nunc pro tunc order (retroactively documenting an earlier oral order) constitutes a valid written order under the speedy trial rule, so the defendant was not entitled to discharge.
A nunc pro tunc order constitutes a valid written or recorded order under Rule 3.191(d)(2). The nunc pro tunc order is effective ab initio (from the beginning) as of the date of the original oral order, and therefore the defendant was not entitled to discharge when the written order was later entered.
[1] A nunc pro tunc order, when properly entered, is effective as of the date of the original judicial act it memorializes, not the date of its entry.
[2] A nunc pro tunc order serves as evidence of a prior judicial act, correcting a defective or absent record of that act.
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Join FLexlaw to unlock all legal intelligence“a judgment or order is rendered and is valid and binding when it is orally given, pronounced or announced, although the only competent evidence of that judicial act is a memorial or record in the form of a later written and signed order or judgment”
Establishes that oral judicial orders are valid even when later memorialized in writing
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Join FLexlaw to unlock all legal intelligencePetitioner Briseno was arrested on felony charges and had a 180-day speedy trial rule period. On May 25, 1982, the trial court orally granted the Stat…
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COWART, Judge.
During the 180 day speedy trial rule right period relating to felony charges on which petitioner had been arrested, the trial court on May 25, 1982, orally granted an oral motion of the State for a continuance and extended the rule time for exceptional circumstances. After the expiration of the speedy trial rule period but before a written or recorded order granting such continuance and extending time was filed of record, petitioner moved for a discharge. The trial court then entered, nunc pro tunc to May 25, 1982, a written order documenting the original oral order and thereupon denied petitioner’s motion for discharge. Petitioner seeks a writ prohibiting the trial judge from further handling any prosecution against him on account of the conduct or criminal episode for which he was arrested, contending that the rule right period had run and that he was forever discharged under Florida Rule of Criminal Procedure 3.191(a)(1).
The question is whether the nunc pro tunc order in this case constitutes a “written or recorded order of the court” within the meaning of Rule 3.191(d)(2). We hold it does. Aside from its particular definition in Florida Rule of Appellate Procedure 9.020(g), a judgment or order is rendered and is valid and binding when it is orally given, pronounced or announced, although the only competent evidence of that judicial act is a memorial or record in the form of a later written and signed order or judgment. Nunc pro tunc means “now for then” and when applied to the entry of a legal order or judgment it normally refers, not to a new or de novo decision, but to the judicial act previously taken, concerning which the record is absent or defective. The later record-making act constitutes but later evidence of the earlier effectual act. See Luhrs v. State, 394 So. 2d 137 (Fla. 5th DCA 1981), citing Becker v. King, 307 So. 2d 855 (Fla. 4th DCA), cert. dismissed, 317 So. 2d 76 (Fla.1975), which was recently again cited with approval by this court in Blais v. Blais, 410 So. 2d 1365 (Fla. 5th DCA 1982).
Accordingly, we hold the nunc pro tunc order when entered was effective ab initio as of May 25, 1982, as a written or recorded order under Rule 3.191(d)(2) and, therefore, the petition for writ of prohibition is
DENIED.
ORFINGER, C. J., and DAUKSCH, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Colon v. State, 909 So. 2d 484 (Fla. 5th DCA 2005)…005) (“The Court thus convicted and sentenced appellant nunc pro tunc to the earlier date of November 18, 1996, which was when, but for a mistake, it should have been done.”); Brown v. State, 786 So. 2d 1257 (Fla. 5th DCA 2001). In Briseno v. Perry, 417 So. 2d 813 (Fla. 5th DCA 1982), review denied, 427 So. 2d 736 (Fla.1983), we explained: Nunc pro tunc means “now for then” and when applied to the entry of a legal order or judgment it normally refers, not to a new or de novo decision, but to the judicial act…
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Whack v. Seminole Mem'l Hosp., Inc., 456 So. 2d 561 (Fla. 5th DCA 1984)…lizes a previously taken judicial act. When applied to the entry of a legal order, it normally refers, not to a new or de novo decision, but to the [*564] trial judge’s previous action of which there is not a sufficient record. See Briseno v. Perry, 417 So. 2d 813 (Fla. 5th DCA 1982); Luhrs v. State, 394 So. 2d 137 (Fla. 5th DCA 1981). In the case sub judice, the nunc pro tunc order dated June 10, 1982, was not a de novo decision following recusal but instead represented only the ministerial act of making a…
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Burton v. State, 596 So. 2d 733 (Fla. 2d DCA 1992)…(Fla.1986). The Sparkman court, however, found it necessary for the clerk to make a notation of the order. See also McDermott v. City of Clearwater, 526 So. 2d 121, 122 n. 1 (Fla. 2d DCA), review denied, 534 So. 2d 400 (Fla.1988); Briseno v. Perry, 417 So. 2d 813, 813-14 (Fla. 5th DCA 1982), review denied, 427 So. 2d 736 (Fla.1983) (“a judgment or order is rendered and is valid and binding when it is orally given, pronounced or announced, although the only competent evidence of that judicial act is a memoria…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Becker v. King, 307 So. 2d 855 (Fla. 4th DCA 1975)
- Becker v. King, 317 So. 2d 76 (Fla. 1975)
- Luhrs v. State, 394 So. 2d 137 (Fla. 5th DCA 1981)
- Blais v. Blais, 410 So. 2d 1365 (Fla. 5th DCA 1982)