ERNEST SIBERT A/K/A ERNEST BUSKER, RELATOR,
v.
RAYMOND J. HARE, JUDGE, CIRCUIT COURT, RESPONDENT
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Ernest Sibert sought a writ of prohibition to prevent trial on misdemeanor counts after the 90-day speedy trial period elapsed. The court held that joinder of misdemeanor counts with a felony count in a single information does not extend the speedy trial deadline for the misdemeanors, and Sibert was entitled to discharge on those counts.
The joinder of misdemeanor counts with a felony count does not operate to extend the speedy trial deadline for the misdemeanor counts. If an accused is continuously available for trial and not tried on misdemeanor counts within 90 days of arrest, the accused is entitled to discharge on those counts regardless of the felony's extended trial period.
[1] A defendant is entitled to discharge on misdemeanor charges if not brought to trial within 90 days, even if those charges are joined in an information with a felony count…
[2] The joinder of misdemeanor counts with a felony count in a single information does not extend the speedy trial period for the misdemeanor counts.
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Join FLexlaw to unlock all legal intelligence“The fact that the State has chosen to join the misdemeanor counts in a single information in which a felony arising out of the same circumstances is also charged, cannot operate to deprive the accused of his speedy trial rights on the misdemeanor counts.”
Establishes the core holding that joinder of charges does not extend speedy trial rights for misdemeanors.
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Join FLexlaw to unlock all legal intelligenceAn amended information was filed against Sibert on September 22, 1972, charging one felony (Count I) and two misdemeanors (Counts II and III) arising …
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Upon relator’s suggestion for writ of prohibition, we issued a rule nisi. Respondent having made return thereto, this cause is ready for final disposition.
An amended information was filed in the Circuit Court in and for Broward County, Florida, in three counts, Count I being a felony, and Counts II and III, respectively, being misdemeanors arising out of the same circumstances as the felony. The information was filed September 22, 1972, and relator was taken into custody the same day. On February 27, 1973, a date *524more than 90 days after relator was taken into custody on said charges, he filed his motion for discharge under Rule 3.191 (d)(1) RCrP, 33 F.S.A., as to the misdemeanor counts. The court denied the motion for discharge on the sole ground that since the misdemeanors were joined in an information including a felony count, the time within which to try the misdemeanor counts was extended to the limitation within which the felony count could be tried.
Prohibition is an appropriate remedy to prohibit a trial court from proceeding where an accused is entitled to discharge under the speedy trial rule and his motion for such has been denied. State ex rel. Neville v. Goodman, Fla.App.1971, 254 So.2d 55. Relator was entitled to be discharged under the provisions of Rule 3.191, RCrP as to the misdemeanor counts, Counts II and III of the amended information in Case No. 72-36153, provided he was continuously available for trial during the 90-day period following his arrest on September 22, 1972. The fact that the State has chosen to join the misdemeanor counts in a single information in which a felony arising out of the same circumstances is also charged, cannot operate to deprive the accused of his speedy trial rights on the misdemeanor counts. The State should either file separate informations, or be prepared to try the accused on all counts within the lesser period of 90 days, or expect the accused to seek a discharge of the misdemeanor counts if not tried within the 90 days.
Respondent, as Judge of the Circuit Court of Broward County, Florida, (to whom has been assigned the trial of the information pending against relator) shall without delay ascertain whether relator has been continuously available for trial during the 90-day period subsequent to September 22, 1972, and if so, shall exercise no further jurisdiction as to the misdemeanor counts of the information beyond entering an order pursuant to Rule 3.191(h)(1), RCrP directing relator’s discharge as to the misdemeanor counts.
It is so ordered.
REED, C. J., and MAGER, J., concur.
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Sherrod v. The Honorable Arthur J. Franza, 427 So. 2d 161 (Fla. 1983)…es. State v. Jenkins, 389 So. 2d 971 (Fla.1980). Prohibition is an appropriate remedy to prohibit trial court proceedings where an accused has been denied his right to a speedy trial and his motion for discharge has been denied. See Sibert v. Hare, 276 So. 2d 523 (Fla. 4th DCA 1973). A court does not have jurisdiction to try a defendant when he is entitled to discharge on the ground of double jeopardy or collateral estoppel, or if he is entitled to a discharge because of a violation of his immunity from pros…1 / 2
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Lowe v. The Honorable Joseph E. Price, 437 So. 2d 142 (Fla. 1983)…za, 421 So. 2d 161 (Fla.1983), we reiterate that prohibition is an appropriate remedy to prohibit trial court proceedings where an accused has been denied his right to a speedy trial and his motion for discharge has been denied. See, Sibert v. Hare, 276 So. 2d 523 (Fla. 4th DCA 1973). Prohibition is a proper remedy to prevent a lower court from proceeding in a cause over which it has no jurisdiction. State ex rel. Girard v. McNulty, 348 So. 2d 311 (Fla.1977), and a court does not have jurisdiction to try a de…
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State of Fla. ex rel. Wayne P. Dean, Jr. v. The Honorable John W. Booth, 349 So. 2d 806 (Fla. 2d DCA 1977)…d. The motion was denied. The relator has now filed in this court a suggestion for writ of prohibition seeking to prevent, his trial on the aggravated battery charge. If the speedy trial time has run, prohibition is a proper remedy. Sibert v. Hare, 276 So. 2d 523 (Fla. 4th DCA 1973). When the police initially questioned the relator at the station, he was “in custody” for purposes of being entitled to Miranda warnings. However, we do not believe he was “in custody” within the meaning of Fla.R.Crim.P. 3.191(a…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State of Fla. ex rel. v. Honorable Murray Goodman, 254 So. 2d 55 (Fla. 3d DCA 1971)