JEFFREY ALLEN JENKINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the information was not fundamentally deficient and the defendant's speedy trial rights were not violated.
The defendant was charged with robbery. The State amended the information, and the defendant moved for discharge based on speedy trial violations. A m…
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ORFINGER, Chief Judge.
An information charging that the defendant did “by force, violence, assault or putting in fear, take away from the person or custody of [another] certain property ...” is not fundamentally deficient. Harpham v. State, 435 So. 2d 375 (Fla. 5th DCA 1983). Thus, there was no error in permitting the State to amend the information to allege the defendant’s intent to permanently deprive the victim of the property, especially where, as here, it was conceded by defendant that such amendment would not prejudice him. See Lackos v. State, 339 So. 2d 217 (Fla.1976).
Appellant’s contention that he was entitled to be discharged because of the violation of the speedy trial rule, Fla.R. Crim.P. 3.191, is also without merit. Appellant’s trial was commenced within 180 days following his arrest. When a mistrial was declared on appellant’s motion, his trial was then set 77 days later, and at that time he entered a plea of nolo contendere, reserving his right to appeal the denial of his motion to dismiss the information and for discharge because of speedy trial violation.
Fla.R.Crim.P. 3.191(g) provides that a person who is to be tried again because of a mistrial shall be brought to trial within 90 days from the date of declaration of mistrial by the trial court. Appellant was brought to trial within the 90-day period. His contention that he was entitled to discharge because his subsequent trial date was beyond the 180-day period from the date of his arrest is unavailing, because once a mistrial has been declared, the 180-day period of Rule 3.191(a) no longer applies, and a new and independent 90-day period begins. Rule 3.191(g); Durrance v. Rudd, 398 So. 2d 1012 (Fla. 1st DCA 1981).
AFFIRMED.
DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur.
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Cited By
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State v. Kerwin, 449 So. 2d 355 (Fla. 1st DCA 1984)…to trial within ninety days from September 13, 1982, the date on which the trial court received this Court’s mandate subsequent to an interlocutory appeal taken by the state.2 Durrance v. Rudd, 398 So. 2d 1012 (Fla. 1st DCA 1981); Jenkins v. State, 446 So. 2d 146 (Fla. 5th DCA 1983). Trial was set for October 13, 1982, in Wakulla County. In the meantime, Ker-win’s whereabouts being unknown, defense counsel was instructed by the court on September 27 to advise Kerwin to turn himself in to Duval County author…
Authorities Cited
- Lacros v. State, 339 So. 2d 217 (Fla. 1976)
- Powell v. State, 398 So. 2d 1012 (Fla. 1st DCA 1981)
- Harpham v. State, 435 So. 2d 375 (Fla. 5th DCA 1983)