THE STATE OF FLORIDA, APPELLANT,
v.
VICTOR DANTE, APPELLEE
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Florida appeals the trial court's discharge of defendant Victor Dante based on a speedy trial violation and dismissal of the information for prosecutorial bad faith. The appellate court affirms the discharge order, finding the state failed to bring the defendant to trial within the 60-day demand period after a tolling period expired, thereby rendering the dismissal appeal moot.
The appellate court affirmed the discharge, holding that: (1) Rule 3.191(g) does not apply to original writs of prohibition because such proceedings are not appeals; (2) the state had until October 3, 1983 to bring the defendant to trial and failed to do so; and (3) the defendant's demand for speedy trial was not subject to being stricken because he diligently investigated and was prepared for trial.
[1] A speedy trial period is tolled when the state files a petition for a writ of prohibition and the trial court grants an order extending the speedy trial time until the ap…
[2] A speedy trial demand is not violated when the defendant is brought to trial within the remaining days of the speedy trial period after a tolling period ends.
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Join FLexlaw to unlock all legal intelligence“We have held that Fla.R. Crim.P. 3.191(g) is inapplicable to an original petition for a writ of certiorari filed in this court because such a proceeding is not, in the language of the rule, an "appeal."”
Establishes that Rule 3.191(g)'s 90-day period does not apply to original writs of prohibition
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDante filed a demand for speedy trial on June 23, 1983, on charges of trafficking in stolen property. On July 21, 1983, at a trial call, the court gra…
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PER CURIAM.
The state appeals two orders entered below (1) discharging the defendant Victor Dante from the cause based on a speedy trial violation, and (2) dismissing the information filed herein based on prosecutorial bad faith conduct. We affirm the order discharging the defendant Dante on speedy trial grounds thereby rendering the appeal from the order of dismissal moot.
On June 23, 1983, the defendant Dante filed a demand for speedy trial under Fla.R.Crim.P. 3.191(a)(2) on an information filed below charging him with four counts of trafficking in stolen property.
On July 21, 1983, the case was called for trial and the court concluded, after hearing argument from both parties, that the cause would be heard non-jury.
At the hearing, the state indicated that it would seek review of that determination by filing a petition for a writ of prohibition in this court and requested that the speedy trial period be tolled from that date until this court had passed on the prohibition petition. The court granted the state’s request and entered an order extending the speedy trial time from July 21,1983, until receipt by the trial court of a mandate, order or notice, from this court or the supreme court, in the prohibition proceeding resolving the jury trial issue. At that point, twenty-eight days had run on the defendant Dante’s sixty-day demand for speedy trial; conversely, thirty-two days remained to run on the same demand.
The state thereafter filed a petition for a writ of prohibition in this court and a rule nisi issued. The parties thereafter settled the case, agreeing that the cause should be tried by a jury; the prohibition petition was, by stipulation, dismissed by this court.
On August 31, 1983, this court’s order of dismissal was received by the trial court thereby ending the speedy trial tolling period under the trial court’s prior speedy trial extension order. At this point, thirty-two days remained on the defendant’s sixty-day speedy trial demand — which meant that the state had until October 3, 1983 to bring the defendant to trial. The defendant, although continuously available, was not brought to trial by the state within that period, and, consequently, the trial court correctly discharged the defendant from the cause under the speedy trial rule. Fla. R.Crim.P. 3.191(a)(2).
We reject the state’s argument that Fla.R.Crim.P. 3.191(g) is applicable to this case giving the state ninety days from August 31, 1983 — the date our prohibition dismissal order was received in the trial court — to try the defendant upon remand, to wit: November 29, 1983, and thereby necessitating a denial of the motion for discharge. We have held that Fla.R. Crim.P. 3.191(g) is inapplicable to an original petition for a writ of certiorari filed in this court because such a proceeding is not, in the language of the rule, an “appeal.” State v. Barreiro, 460 So. 2d 945 (Fla. 3d DCA 1984).
We think the same rule obtains to an original petition for a writ of prohibition filed in this court because, plainly, original writ proceedings are not appeals and are therefore not covered by Fla.R.Crim.P. 3.191(g).
We also reject the state’s contention that the demand for speedy trial should have been stricken as, on this record, the defendant Dante had diligently investigated his case and was prepared for trial at the time the demand was filed. See Fla.R.Crim.P. 3.191(c).
The order discharging the defendant Dante under the speedy trial rule is affirmed. The appeal from the dismissal order is moot.
Affirmed as stated.
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Hochstrasser v. Hon. David A. Demers, 491 So. 2d 1245 (Fla. 2d DCA 1986)…reads as follows: However, the reference to appeals in this subsection does not encompass petitions for extraordinary writs. Wheeler v. Barron, 471 So. 2d 146 (Fla. 1st DCA), petition for review dismissed, 476 So. 2d 676 (Fla.1985); State v. Dante, 467 So. 2d 744 (Fla. 3d DCA), petition for review denied, 479 So. 2d 118 (Fla.1985); State v. Barreiro, 460 So. 2d 945 (Fla. 3d DCA 1984). In order to toll the speedy trial time pending a petition for certiorari, an order of extension must be obtained from the tri…
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