EDWARD ALBERT DABKOWSKI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant is entitled to a speedy trial, not a speedy dismissal, and failing to properly request the former does not entitle them to dismissal.
[1] A defendant seeking dismissal for violation of speedy trial rights must file a notice of expiration of speedy trial time, not merely a motion for discharge.
[2] A motion for discharge, unlike a notice of expiration of speedy trial time, does not require immediate scheduling by the court.
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W. SHARP, Judge.
Dabkowski appeals his judgment and sentence for robbery with a deadly weapon.1 The primary issue on appeal is whether the trial court erred in not granting Dabkowski’s motion to dismiss and motion for discharge for violation of his speedy trial rights. We affirm, relying on Clark v. State, 698 So. 2d 1274 (Fla. 3d DCA 1997).
In Clark, .Judge Schwartz ruled in a similar ease that a defendant who filed a motion for discharge rather than a notice of expiration of speedy trial time as provided by Florida Rule of Criminal Procedure 3.191(h), (p)(2), (3), was not entitled to dismissal of the criminal charges pending against him. Judge Schwartz reasoned that the notice is designed to alert the clerk and the prosecution that the case must immediately be brought to the attention of the court by placing it on its calendar:
[W]ithin a day or two so that the recapture period may be complied with.... On the other hand, since a “motion to discharge” may not be granted unless it is well taken when filed, ... there is no necessity for scheduling it at any particular time.
Clark, 698 So. 2d at 1275.
Dabkowski attempts to distinguish this case from Clark on the ground that the court ordered the state to file a response to the motion for discharge within five days. Eighteen days later, the state filed a response and a hearing was held on the matter, within two days.
We do not think these circumstances constituted a recognition by the trial court that Dabkowski had filed a notice of expiration of speedy trial time. Had the court viewed this pleading as a notice of expiration, it would have set a hearing immediately rather than ordering a quick response. Had it done so, conceivably, the fifteen day time limit to bring Dabkowski to trial required by rule 3.191 could have been complied with. We agree with Judge Schwartz that a defendant is not entitled to a “speedy dismissal,” but only to a “speedy trial.” Having failed to ask for that remedy, Dabkowski is not entitled to it.
AFFIRMED.
COBB and GOSHORN, JJ., concur. . § 812.13(2)(a), Fla. Stat (1995).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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State v. Gibson, 783 So. 2d 1155 (Fla. 5th DCA 2001)…nd Creamer’s right to a speedy trial. Further, the Motion for Discharge was insufficient to trigger rule 3.191(p)(3) procedures because a Motion for Discharge is not synonymous with a Notice of Expiration under rule 3.191(h). See Dabkowski v. State, 711 So. 2d 1219 (Fla. 5th DCA 1998) (holding that a defendant who filed a motion for discharge rather than a notice of expiration was not entitled to dismissal of the charges against him; defendant is entitled to speedy trial, not speedy dismissal); Clark v. State,…
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Sterling v. State, 728 So. 2d 340 (Fla. 1st DCA 1999)…PER CURIAM. Because petitioner did not file a notice of expiration of speedy trial as required by Florida Rule of Criminal Procedure 3.191(h), he is not entitled to discharge. See Dabkowski v. State, 711 So. 2d 1219 (Fla. 5th DCA 1998) and Clark v. State, 698 So. 2d 1274 (Fla. 3d DCA 1997). In addition, this court has held that prohibition is not an appropriate proceeding for determining disputed issues of fact or to review the sufficiency of the evidence to su…
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State v. Demars, 848 So. 2d 436 (Fla. 4th DCA 2003)…to depriving him of rights which he did not appropriately assert, the defendant cannot now argue that it does not matter that he did not claim them in the way required by the rule itself. Id. at 1275 (citations omitted); accord, Dabkowski v. State, 711 So. 2d 1219, 1220 (Fla. 5th DCA 1998). We agree with the reasoning in Clark, that a notice, not a motion, is required to trigger the expiration of recapture period.1 Rule 3.191(p)(2) states: At any time after the expiration of the prescribed time period, the…
Authorities Cited
- Clark v. State, 698 So. 2d 1274 (Fla. 3d DCA 1997)