JOSEPH BROOKS WINFIELD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the state failed to prove the defendant was unavailable for trial, thus violating his speedy trial rights.
Appellant was arrested and later released from custody after a preliminary hearing found no probable cause. He failed to appear for arraignment becaus…
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GRIMES, Acting Chief Judge.
Appellant raises three issues in this appeal from a conviction for aggravated assault and discharging a firearm in public. Only one point requires discussion. Appellant argues that the trial court erred in failing to grant his motion for discharge based on speedy trial grounds. We agree.
From the record before us, it appears that appellant was arrested October 24, 1984. Thus, the speedy trial rule as it existed prior to the 1985 amendment applies. State v. Green, 473 So. 2d 823 (Fla. 2d DCA 1985). In defense of its failure to try appellant within 180 days of his arrest, the state argued that he had not been continuously available for trial, as defined by Florida Rule of Criminal Procedure 3.191(e). The basis for this contention was that appellant failed to appear for an arraignment scheduled for January 25, 1986. However, prior to the filing of the information, the court, at an adversary preliminary hearing, found no probable cause and released appellant from custody. Fla.R. Crim.P. 3.133(b). When the information was thereafter filed, notice was sent to appellant’s last known address. Appellant was no longer at that address and failed to appear at arraignment.
We believe this case is controlled by Clinton v. State, 451 So. 2d 893 (Fla. 3d DCA 1984), and State ex rel. Smith v. Nesbitt, 355 So. 2d 202 (Fla. 3d DCA 1978). At the time the county court released appellant there was no information pending. Therefore, appellant had no obligation to notify the court of his change of address or otherwise keep in touch with the court. Fla.R.Crim.P. 3.133(b)(5). Hence, he was not “unavailable,” in spite of his failure to appear. Accordingly, we remand this case to the trial court with directions to discharge appellant.
Reversed.
SCHOONOVER and LEHAN, JJ., concur.
PER CURIAM.
Our decision to reverse appellant’s conviction was predicated upon the premise that the speedy trial rule as it existed prior to the 1985 amendment was applicable to the case. However, unbeknownst to this court, only eight days before our opinion was issued, the Third District Court of Appeal, sitting en banc, receded from its previous decision in McKnight v. Bloom, 490 So. 2d 92 (Fla. 3d DCA 1986), and held that the speedy trial rule as amended in 1985 should apply where the motion for discharge was filed after the effective date of the amendment even though the arrest occurred prior to the date of the amendment. Zabrani v. Cowart, 502 So. 2d 1257 (Fla. 3d 1986). On January 5, 1987, the supreme court, on review of the question certified in McKnight v. Bloom, reversed that case and adopted the reasoning of Zabrani v. Cowart. Bloom v. McKnight, 502 So. 2d 422 (Fla.1987).
While appellant was arrested in 1984, his motion for discharge was not filed until July 30, 1985. Therefore, the 1985 amendment was applicable. The court denied the motion for discharge on August 2, 1985, and appellant’s jury trial was held on August 8, 1985. Under the speedy trial rule as amended, appellant was not entitled to be discharged because his trial took place within ten days after the court ruled on his motion. Fla.R.Crim.P. 3.191(i).
We grant the motion for rehearing and affirm appellant’s conviction and sentence.
GRIMES, A.C.J., and SCHOONOVER and LEHAN, JJ., concur.
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Lolita Barthel v. State, 882 So. 2d 1054 (Fla. 2d DCA 2004)…State, 565 So. 2d 708, 709 (Fla. 5th DCA 1990) (observing that the principle that the law in effect at the time of appeal should be applied extends to the pendency of motions for rehearing before issuance of the mandate); see also Winfield v. State, 503 So. 2d 333, 334 (Fla. 2d DCA 1986). Accordingly, we reverse the summary denial of ground sixteen and remand for further proceedings consistent with Nelson, including granting Barthel leave to amend ground sixteen within a specified time. See Nelson, 875 So. 2d…
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State v. Willis, 533 So. 2d 920 (Fla. 2d DCA 1988)…within sixty days of his initial demand. However, Rule 3.191(i)(4) now gives the state fifteen days after the filing of a motion for discharge to bring' a defendant to trial. Bloom v. McKnight, 502 So. 2d 422 (Fla.1987). See also Win-field v. State, 503 So. 2d 333 (Fla. 2d DCA 1986). The committee note to the 1984 amendment of subsection (i) clearly indicates that the intent was to give the prosecutor a full fifteen days after the filing of a motion for discharge because ten days was deemed insufficient time…
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Reed v. State, 565 So. 2d 708 (Fla. 5th DCA 1990)…tate, 381 So. 2d 1154 (Fla. 5th DCA 1980). This principle, that the law in effect at the time of appeal should be applied, is applicable to motions for rehearing. See, e.g., Williams v. State, 546 So. 2d 1120 (Fla. 4th DCA 1989); Winfield v. State, 503 So. 2d 333 (Fla. 2d DCA 1986). We recognize that a motion for rehearing of Pope is pending before our supreme court. The state contends that application of the Pope rule would be improper before a decision is made on the motion for rehearing but cites not aut…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Walker v. State, 355 So. 2d 202 (Fla. 3d DCA 1978)
- Iqbal Zabrani v. The Honorable Edward D. Cowart, 502 So. 2d 1257 (Fla. 3d DCA 1986)
- Bloom v. McKNIGHT, 502 So. 2d 422 (Fla. 1987)
- State v. Green, 473 So. 2d 823 (Fla. 2d DCA 1985)
- McKNIGHT v. The Honorable Philip Bloom, 490 So. 2d 92 (Fla. 3d DCA 1986)
- Levy v. Levy, 451 So. 2d 893 (Fla. 3d DCA 1984)
- Clinton v. State, 451 So. 2d 893 (Fla. 3d DCA 1984)