THE STATE OF FLORIDA, APPELLANT,
v.
RAMON MARTINEZ, APPELLEE
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A defendant waives speedy trial rights by securing a continuance, rendering a subsequent motion for discharge meritless.
The defendant moved for discharge under speedy trial rules after the state failed to bring the motion on for hearing within five days. The defendant h…
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SCHWARTZ, Chief Judge.
Because the defendant had moved for and secured at least one previous continuance, thus effecting a waiver of his speedy trial rights, his motion for discharge filed under Fla.R.Crim.P. 3.191 was not well taken. Brown v. State, 561 So. 2d 607 (Fla. 3d DCA 1990); Ehn v. Smith, 426 So. 2d 570 (Fla. 5th DCA 1983); State v. Brown, 412 So. 2d 448 (Fla. 5th DCA 1982). Nevertheless the trial court dismissed the prosecution because the state had not brought the motion on for hearing within five days as required by Fla.R.Crim.P. 3.191(i)(3). See Massey v. Graziano, 564 So. 2d 287 (Fla. 5th DCA 1990); Ariza v. Cycmanick, 548 So. 2d 304 (Fla. 5th DCA 1989); Lenard v. Moxley, 497 So. 2d 973 (Fla. 5th DCA 1986). We disagree and reverse.
It seems obvious that the failure to hold a hearing on a motion which, as a matter of law, was without merit and required denial, did not affect the parties’ substantial rights and was therefore legally irrelevant. In other words, a hearing on the motion within five days is required only as a remedy for the effectuation of the defendant’s rights under Rule 3.191. The failure to enforce nonexistent rights, however, can make no difference.1
Reversed.
. On their face, the Fifth District cases cited by the appellee, Massey, 564 So. 2d 287; Ariza, 548 So. 2d 304; and Lenard, 497 So. 2d 973, do not indicate that improperly unscheduled motions for discharge were anything but meritorious. They thus contain no holding contrary to our conclusion. We are told, however, that in Ariza, 548 So. 2d 304, there was indeed a previous continuance secured by the defendant. If Ariza therefore involves a sub silentio determination that this fact was irrelevant, we disagree.
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)…speedy trial rule by repeatedly agreeing to continuances, and these inconsistent actions [*889] bind McKinney, citing Pannier v. State, 582 So. 2d 1240 (Fla. 3d DCA), rev. denied, 593 So. 2d 1052 (Fla.1991). The state asserts that State v. Martinez, 586 So. 2d 1285 (Fla. 3d DCA 1991) is very similar to the case at bar. It also relies on State v. Brown, 527 So. 2d 209 (Fla. 3d DCA), rev. denied, 534 So. 2d 398 (Fla.1988), analogizing the facts in this case to those in Brown where the appellate court condemned t…
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Holston v. State, 958 So. 2d 1057 (Fla. 4th DCA 2007)…is issue requires an evidentiary hearing. If the trial court determines that Holston was unavailable, then he is not entitled to discharge, and the failure to hold a timely hearing pursuant to rule 3.191(p)(3) is irrelevant. See State v. Martinez, 586 So. 2d 1285 (Fla. 3d DCA 1991); Harris v. State, 400 So. 2d 819 (Fla. 5th DCA 1981). If, on the other hand, the court determines Holston was available and he did not otherwise waive his speedy trial rights, the motion for discharge should be granted. Accordin…
Authorities Cited
- EHN v. Honorable C. McFerrin Smith, III, 426 So. 2d 570 (Fla. 5th DCA 1982)
- Ariza v. Hon. Michael F. Cycmanick, 548 So. 2d 304 (Fla. 5th DCA 1989)
- State v. Buster Dean Brown, 412 So. 2d 448 (Fla. 5th DCA 1982)
- Lenard v. The Honorable John Dean Moxley, Jr., 497 So. 2d 973 (Fla. 5th DCA 1986)
- Massey v. Hon. Gayle Graziano, 564 So. 2d 287 (Fla. 5th DCA 1990)
- Surendra K. Sirpal and Poonam Sirpal v. Jefferson Nat'l Bank, 561 So. 2d 607 (Fla. 3d DCA 1990)