ISRAEL DIAZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Israel Diaz appealed the denial of his motion for automatic discharge under Florida's speedy trial rule after being charged with grand theft. The court held that because the state refiled charges within the 175-day speedy trial period, Diaz was entitled only to the 15-day window period procedure for seeking discharge, not automatic discharge as in State v. Agee.
The court held that because the state refiled charges within the 175-day speedy trial period, Diaz was not entitled to automatic discharge. Instead, he was entitled only to file a motion for discharge and proceed under the 15-day window period set forth in Rule 3.191(i)(3), distinguishing this case from State v. Agee where the speedy trial period had expired prior to refiling.
[1] When the state enters a nol pros, the speedy trial period continues to run, and the state may not refile charges based on the same conduct after the period has expired.
[2] A defendant is entitled to automatic discharge if the speedy trial period expires prior to the refiling of charges.
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Join FLexlaw to unlock all legal intelligence“when the State enters a nol pros, the speedy trial period continues to run and the State may not refile charges based on the same conduct after the period has expired”
Establishes the holding in State v. Agee that the court distinguishes from the instant case
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Join FLexlaw to unlock all legal intelligenceDiaz was arrested on January 13, 1992 for grand theft of the third degree. A no information was filed on February 11, 1992, but an information for the…
The full statement of facts, procedural history, and disposition for this case are member content.
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COBB, Judge.
The state has filed a motion for rehearing. Upon reconsideration, we vacate the opinion previously filed herein on September 24, 1993, and substitute the following opinion therefore:
The appellant, Diaz, was arrested on January 13,1992 and charged with grand theft of the third degree. On February 11, 1992, a no information was filed. On May 12, 1992 (120 days after arrest), an information for the same charge was filed and Diaz was rearrested on June 24, 1992. On August 17, 1992 (217 days after the initial arrest), Diaz filed a motion pursuant to Florida Rule of Criminal Procedure 3.191 contending that more than 180 days had elapsed since his initial arrest on the charge and seeking discharge “without regard to the 15-day window [period] contemplated by Rule 3.191(i)(3).” The motion for automatic discharge was denied on August 21, 1992. Diaz pled no contest and was adjudicated guilty, reserving the right to appeal the denial of his motion for automatic discharge.
The issue on this appeal is the correctness of that ruling, which turns on the applicability of the “window period” to the facts of this case when considered in light of the opinion in State v. Agee, 622 So. 2d 473 (Fla.1993). There, the Florida Supreme Court held “that when the State enters a nol pros, the speedy trial period continues to run and the State may not refile charges based on the same conduct after the period has expired.” Agee at 475. This holding was predicated upon the rationale that where the speedy trial period expired prior to the refiling of the charge, the defendant was deprived by the state of his right to seek discharge at the end of the prescribed period of 175 days — hence, he was thereafter entitled to automatic discharge upon the refiling of the charge.
The facts are significantly different in the instant case, even if we equate the filing of a no information with the filing of a nol pros. Here, the state refiled the charge -within the 175-day period following the initial arrest. Therefore, at the expiration of that period, Diaz was entitled only to file his motion for discharge and incept the 15-day window period proceedings set forth in Florida Rule of Criminal Procedure 3.191(p)(3). He was not entitled to an automatic discharge, as was Agee, because at the end of the 175-day period the case was in court and the procedural remedy of filing a motion for discharge was available to Diaz at that time.
Accordingly, the conviction below is affirmed.
AFFIRMED.
DAUKSCH and GRIFFIN, JJ., concur.
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Cordero v. State, 686 So. 2d 737 (Fla. 3d DCA 1997)…l after the speedy trial period had expired. Consequently, for the reasons discussed, we reverse and remand with directions to discharge Cordero. Reversed and remanded with directions. . Fla. R.Crim.P. 3.191. . In contrast, we note Diaz v. State, 627 So. 2d 125 (Fla. 5th DCA 1993). There, after the case was no actioned and the defendant released, the state filed charges and rearrested the defendant within the speedy trial period. Thus, the defendant was not entitled to a discharge because he knew when the…
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State v. Gantt, 688 So. 2d 1012 (Fla. 3d DCA 1997)…had been notified that the charges had been refiled, the defendant could have timely moved for discharge and the State would be entitled to the fifteen day window it now seeks.1 See State v. Morris, 662 So. 2d 378 (Fla. 4th DCA 1995); Diaz v. State, 627 So. 2d 125 (Fla. 5th DCA 1993). However, here the defendant’s trial was delayed beyond the speedy trial period through no fault of his own. See Fla. R.Crim. P. 3.191(p)(3). The defendant was in jail, captive, immobile, and in the State’s control. He could not…
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Bryant v. State, 650 So. 2d 68 (Fla. 5th DCA 1994)…nt can retroactively waive his right to a speedy trial. Because the case was refiled after the time for speedy trial expired, thus depriving Bryant of his right to file a motion for discharge, he is entitled to an automatic discharge. Diaz v. State, 627 So. 2d 125 (Fla. 5th DCA 1993). This case is controlled by the Florida Supreme Court’s decision in State v. Agee, 622 So. 2d 473 (Fla.1993). In Agee, a defendant was arrested and an information was filed charging him with attempted second-degree murder. Agee…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Agee, 622 So. 2d 473 (Fla. 1993)