JAMES LENARD, PETITIONER,
v.
THE HONORABLE JOHN DEAN MOXLEY, JR., CIRCUIT JUDGE OF THE EIGHTEENTH JUDICIAL CIRCUIT IN AND FOR BREVARD COUNTY, FLORIDA, RESPONDENT
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The court held that the trial court lost jurisdiction to prosecute the defendant when it failed to hold a hearing and bring the defendant to trial within the time limits prescribed by the Speedy Trial Rule after the defendant filed a motion for discharge.
[1] A trial court loses jurisdiction to prosecute a defendant if it fails to hold a hearing on a motion for discharge within five days of its filing and fails to bring the de…
[2] The burden of timely scheduling a hearing and trial following a motion for discharge rests with the state, not the defendant.
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Join FLexlaw to unlock all legal intelligenceThe defendant filed a motion for discharge after speedy trial times expired. The trial court failed to hold a hearing within five days and bring the d…
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PER CURIAM.
We grant Lenard’s petition for a writ of prohibition seeking a discharge from prosecution pursuant to the Speedy Trial Rule.1 The record shows that after Lenard filed a motion for discharge following the expiration of the speedy trial times in both rule 3.191(a)(1) (175 days) and rule 3.191(a)(2) (50 days) he was not brought to a hearing within five days and the trial court failed to bring him to trial within fifteen days following the filing of the motion. Thereupon, the trial court lost jurisdiction to prosecute Lenard for the crimes for which he was arrested on January 14, 1986: attempted murder and carrying a concealed firearm. Gordon v. Leffler, 495 So. 2d 200 (Fla. 5th DCA 1986).
The state argues that the fifteen day “window” period in rule 3.191(i)(4)2 should not begin to run unless the defendant accompanied the motion with a notice of hearing setting the time for such hearing within five days. We find nothing in the rule which places the burden on the defendant to timely schedule the hearing and trial.3 Here Lenard filed his motion for discharge with the court and served a copy on the state. Thereafter the duty to afford Lenard a hearing and trial within five and fifteen days fell upon the state. Accordingly, we issue the writ of prohibition and order that petitioner be discharged.
WRIT GRANTED.
ORFINGER, COBB and SHARP, JJ., concur. . Fla.R.Crim.P. 3.191(d)(3).
. Rule 3.191(i)(4) reads as follows:
(i) Remedy for Failure to Try Defendant within the Specified Time.
(4) No later than 5 days from the date of the filing of a motion for discharge, the court shall hold a hearing on the motion, and unless the court finds that one of the reasons set forth in section (d)(3) exists, shall order that the defendant be brought to trial within 10 days. If the defendant is not brought to trial within the 10 day period through no fault of the defendant, the defendant shall be forever discharged from the crime.
. Apolinari v. Ulmer, 483 So. 2d 75 (Fla. 2d DCA 1986); review denied, 492 So. 2d 1335 (Fla.1986).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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McKINNEY v. Honorable Theron A. Yawn, Jr., 625 So. 2d 885 (Fla. 1st DCA 1993)…a motion for discharge within 5 days or commence the trial within 15 days, the defendant is entitled to discharge. See Ariza v. Cycmanick, 548 So. 2d 304 (Fla. 5th DCA 1989); Climpson v. State, 528 So. 2d 1296 (Fla. 1st DCA 1988); Lenard v. Moxley, 497 So. 2d 973 (Fla. 5th DCA 1986). The state responds to the petition with a “shot gun” argument that can be summarized as follows. The state contends that defense counsel has acted inconsistently with the speedy trial rule by repeatedly agreeing to continuances…
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Ariza v. Hon. Michael F. Cycmanick, 548 So. 2d 304 (Fla. 5th DCA 1989)…ithin the “window period” provided by Rule 3.191(i)(4) fell upon the state. Since this duty was not performed, the trial court lost jurisdiction to prosecute Ariza for the offense for which he was arrested on September 2, 1988. See Lenard v. Moxley, 497 So. 2d 973 (Fla. 5th DCA 1986). See also Lasker v. Parker, 513 So. 2d 1374 (Fla. 2d DCA 1987). Accordingly, we issue the writ of prohibition and order that Ariza be discharged. WRIT ISSUED. DAUKSCH and COWART, JJ., concur.…
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Massey v. Hon. Gayle Graziano, 564 So. 2d 287 (Fla. 5th DCA 1990)…r the current speedy trial rule, the duty rests on the state to afford a defendant a hearing, and, if necessary, a trial within the window period provided by rule 3.191(i)(4). Ariza v. Cycmanick, 548 So. 2d 304 (Fla. 5th DCA 1989); Lenard v. Moxley, 497 So. 2d 973 (Fla. 5th DCA 1986). The state’s failure to perform this duty results in the trial court’s loss of jurisdiction to conduct a trial on the charges. Ari-za. Accordingly, we issue the writ of prohibition and order that Massey be discharged from further…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Apolinari v. The Honorable Ray E. Ulmer, Jr., 483 So. 2d 75 (Fla. 2d DCA 1986)
- Gordon v. The Honorable Kenneth M. Leffler, 495 So. 2d 200 (Fla. 5th DCA 1986)