STATE OF FLORIDA EX REL. ROBERT WILLIAMS, RELATOR,
v.
EDWARD D. COWART, AS CIRCUIT JUDGE OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA, CRIMINAL DIVISION, RESPONDENT
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The court held that reaffirming a severance does not constitute a mistrial and that a stipulation to waive speedy trial rights must be in writing.
[1] Reaffirming a severance as to a co-defendant does not, by itself, constitute a declaration of a mistrial.
[2] A stipulation to waive or extend speedy trial rule periods must be in writing and signed by the defendant or counsel.
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Join FLexlaw to unlock all legal intelligenceRelator was charged with bribery and conspiracy. After a mistrial on conspiracy, his case was reset for trial beyond the 90-day speedy trial period wi…
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This court issued a rule nisi upon relator’s suggestion for writ of prohibition.
On June 14, 1972 the relator, Robert Williams, was informed against and arrested. The information (No. 72-4703) charged Williams with one count of bribery and one count of conspiracy to commit a bribe along with a co-defendant, Edward J. Connell, who was charged in the same information with one count of accepting a bribe and one count of conspiracy to accept a bribe. Williams and Connell were tried jointly on November 28, 1972. On December 6, 1972 a mistrial was declared on the conspiracy counts and Williams1 was granted a severance for retrial from Connell’s case. Thereafter, on December 27, 1972 the state filed an additional information (No. 72-9315) based upon the same criminal episode alleged in the first information. This new information charged the relator and co-defendant with conspiracy to solicit a bribe.
On March 1, 1972 a hearing was held on a motion for continuance made by counsel for relator which was ultimately denied.
Both cases based on the two informations (Nos. 72-4703 and 72-9135) were called for trial on Monday, March 5, 1973,2 at which time a jury was impaneled and sworn. Thereafter, the state nolle processed case no. 72-4703.3 On March 9, 1973, the respondent trial judge reaffirmed the severance of December 6, 1972 and then reset the relator’s case for trial on March 16, 1973. Subsequently the case was reset again for May 6, 1973. Counsel for relator on March 13, 1973 moved that his client be discharged from prosecution and custody on the grounds that the speedy trial rule had been violated. That motion was denied and counsel filed this suggestion for writ of prohibition.
Respondent contends (1) that the act of reaffirming the relator’s severance by manifest necessity constituted a declaration of mistrial as to the relator even with*529out being declared so, and (2) there was a stipulation or inference of stipulation in the record to waive the ninety (90) day requirement of the speedy trial rule when the original charges were nolle processed and the state refiled some of the charges.
As to the first contention, respondent has cited no Florida case law nor can we find any authority to support the argument that the act of reaffirming a severance as to a co-defendant constitutes a declaration of a mistrial without being declared so. Thus, we are compelled to reject this contention.
Turning to the second point raised, we found that contention to be lacking in merit.
On December 6, 1972 a mistrial as to the conspiracy counts was declared. CrPR 3.-191(g), F.S.A. directs that “a person who is to be tried again shall be brought to trial within ninety (90) days from the date of declaration of a mistrial by the trial court .” Several days prior to the expiration of this ninety (90) day period, on March 1, 1973 a hearing, at which the record reflects some discussion of a waiver of CrPR 3.191(g), was held. However, the parties could not reach agreement on this matter. In addition, CrPR 3.-191(d)(2) clearly provides that a stipulation to waive or extend the periods of time established by the speedy trial rule must be signed in proper person or by counsel. We find no such stipulation signed by the relator or his counsel in the case sub judice.
On March 5, 1973, the final day before the expiration of the ninety (90) days, the cases (Nos. 72-4703 and 72-9135) were set for trial and a jury impaneled and sworn. The causes were then recessed and thereafter the .state entered a nolle prosequi as to case no. 72-4703. On Friday, March 9, 1973, the trial court reaffirmed relator’s severance and reset his trial for a later date.
In light of the above facts, we find that the relator’s speedy trial right pursuant to CrPR 3.191(g) was violated where there was no waiver of the required ninety (90) day period and his new trial date was set in excess of ninety (90) days after the December 6th declaration of mistrial. Further, the fact that the state nolle processed the first case (No. 72-4703) does not operate to deprive the relator of his right to speedy trial for CrPR 3.191(h)(2) provides that the time within whicíi a person must be tried cannot be extended by the state entering a nolle prosequi to a crime charged and then prosecuting new or different charges based on the same conduct or criminal 'episode as in the case at bar.4 See Bryant v. Blount, Fla.App.1972, 261 So.2d 847, cert. denied, Fla.1972, 267 So.2d 82 and State v. Boren, Fla.App.1973, 273 So.2d 415. The record reveals that Robert Williams’ new trial was set ultimately for May 7, 1973 and the date of his arrest was June 14, 1972. Thus, the relator’s right to a speedy trial was violated also pursuant to CrPR 3.191(a)(1), which requires that every person charged with a felony by information be brought to trial within 180 days from the date of custody, which commenced to run in the instant case on June 14, 1972. See Allen v. State, Fla.1973, 275 So.2d 238 (released March 21, 1973).
Viewed from any perspective, the relator was denied his right to a speedy trial.
Accordingly, for the reasons stated here-inabove, we hold that the trial court erred in denying the defendant’s motion for discharge; that the same should be granted and the relator discharged and the respondent is prohibited from further exercising any jurisdiction on information no. 72-9135 as to the relator, Robert Williams.
Prohibition granted.
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Bulgin v. State, 912 So. 2d 307 (Fla. 2005)…as changed from a felony to a misdemeanor and then back to a felony did not alter the running of the speedy trial period from the original arrest date. See also Gue v. State, 297 So. 2d 135 (Fla. 2d DCA 1974). In [State ex rel. Williams v.] Cowart, [281 So. 2d 527 (Fla. 3d DCA 1973) ] there was a mistrial, after which charges were amended. After the expiration of the 90 days under Rule 3.191(g), the state attempted to nolle prosequi one charge. The court [*311] held the speedy trial time limit had run since t…
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Weed v. State, 411 So. 2d 863 (Fla. 1982)…la. 1st DCA 1979), which conflicts with Robinson v. Lasher, 368 So. 2d 83 (Fla. 4th DCA 1979); State v. Thaddies, 364 So. 2d 819 (Fla. 4th DCA 1978); State ex rel. Smith v. Nesbitt, 355 So. 2d 202 (Fla.3d DCA 1978); State ex rel. Williams v. Cowart, 281 So. 2d 527 (Fla.3d DCA 1973), and Wilcox v. State, 248 So .2d 692 (Fla. 4th DCA 1971). We have jurisdiction, Article V, Section 3(b)(3), Florida Constitution. Once again, we are confronted with an application of Rule 3.191, Rules of Criminal Procedure, the sp…
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State v. Dorian, 619 So. 2d 311 (Fla. 3d DCA 1993)…al episode; defendant files motion for discharge; held trial court properly granted the motion); compare State v. Kelly, 407 So. 2d 257 (Fla. 2d DCA 1981); Wright v. State, 387 So. 2d 1060, 1062 (Fla. 5th DCA 1980); State ex rel. Williams v. Cowart, 281 So. 2d 527, 529 (Fla. 3d DCA), cert. denied, 286 So. 2d 11 (Fla. 1973); see abo State v. McDonald, 538 So. 2d 1352 (Fla. 2d DCA 1989) (defendant arrested for two misdemeanors: petit theft and resisting arrest without violence; 90-day speedy trial time for misd…
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
- Hayden v. Cipolato, 275 So. 2d 238 (Fla. 1973)
- Bryant v. Uriel Blount, Jr., 261 So. 2d 847 (Fla. 1st DCA 1972)
- State v. Boren, 273 So. 2d 415 (Fla. 3d DCA 1973)
- Peoples GAS Sys., Inc. v. Zeller, 267 So. 2d 82 (Fla. 1972)
- Encore, Inc. v. Olivetti Corp. OF Am., 267 So. 2d 82 (Fla. 1972)