WILLIE C. SWANSON, PETITIONER,
v.
THE HONORABLE WILLIAM K. LOVE, AS JUDGE OF THE CIRCUIT COURT, IN AND FOR POLK COUNTY, FLORIDA, RESPONDENT
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Willie Swanson petitioned for prohibition after being charged with robbery, arrested in April 1973, had charges dismissed via nolle prosequi in June, and was re-charged in September for the same conduct. Swanson argued trial must occur within 180 days of original arrest, but the court held that delays attributable to the accused extend the 180-day speedy trial period even after a nolle prosequi and refiling of charges.
The court held that delays attributable to the accused extend the 180-day speedy trial period even after a nolle prosequi and refiling of charges based on the same conduct. If the accused is chargeable with any delay under Rule 3.191, that time must be added to the 180 days to determine the latest permissible trial date. The trial judge must determine whether Swanson is chargeable with the claimed 27-day delay.
[1] A defendant's actions may extend the statutory time limit within which the state must bring them to trial.
[2] Delays attributable to the accused prior to a nolle prosequi enlarge the time within which a subsequent prosecution for the same conduct must commence.
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Join FLexlaw to unlock all legal intelligence“The intent and effect of this Rule shall not be avoided by the State by entering a nolle prosequi to a crime charged and by prosecuting a new crime grounded on the same conduct or criminal episode, or otherwise by prosecuting new or different charges based on the same conduct or criminal episode whether or not the pending charge is suspended, continued, or is the subject of entry of a nolle prosequi.”
Establishes that speedy trial protections cannot be circumvented by nolle prosequi followed by refiling of same charges
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Join FLexlaw to unlock all legal intelligenceSwanson was taken into custody and charged with robbery on April 17, 1973. Unable to afford private counsel, he was assigned counsel who moved for a c…
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MANN, Chief Judge.
On April 17, 1973, Swanson was taken into custody, charged with robbery. Swanson was unable to raise the fee his private counsel required and was assigned counsel, who moved for a continuance. A jury trial originally set for June 5, 1973 was reset for June 12.
On June 5, the State Attorney filed a notice of nolle prosequi which indicated that Swanson’s presence on the scene was for a legal purpose.
On September 25, 1973, a second information charging Swanson with the same crime was filed. A jury trial was set for November 6, 1973, but in the meantime Swanson sought prohibition, alleging that trial must take place within 180 days of his original arrest.
The State responds that delay chargeable to the accused, though prior to the nolle prosequi, enlarges the time.
We agree with the State’s contention. CrPR 3.191(h)(2), 33 F.S.A. provides :
“The intent and effect of this Rule shall not be avoided by the State by entering a nolle prosequi to a crime charged and by prosecuting a new crime grounded on the same conduct or criminal episode, or otherwise by prosecuting new or different charges based on the same conduct or criminal episode whether or not the pending charge is suspended, continued, or is the subject of entry of a nolle prosequi.”
It is beyond doubt that the time within which the State must bring Swanson to trial begins to run when he is taken into custody. CrPR 3.191(a)(1). CrPR 3.191(d)(3) and CrPR 3.191(f) indicate that the accused’s actions may have the effect of extending the time. So the question before us is whether delays attributable to the accused following an initial information enlarge the 180 days within which the trial must be held under a second information. We think the time is so enlarged. We cannot judge, on this record, the question whether Swanson is chargeable with 27 days delay, as the State contends, which would make the trial timely.
We hold that if he is chargeable under Rule 3.191 with any delay, that time is to be tacked to the 180 days to determine the latest permissible trial date. The trial judge may determine this question.
Prohibition denied. Petitioner will remain at liberty under the conditions imposed in our prior order unless the trial court, for good cause shown, shall amend or revoke that order. BOARDMAN and GRIMES, JJ., concur.
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State v. Luck, 336 So. 2d 464 (Fla. 4th DCA 1976)…So. 2d 861 (Fla.1971). The same rule applies even if there has been an intervening nolle prose-qui and refiling, which is somewhat analogous to what the defendants claim here. See Clark v. State, 318 So. 2d 513 (Fla. 4th DCA 1975); Swanson v. Love, 290 So. 2d 112 (Fla. 2d DCA 1974). They seek to avoid this result by arguing that the continuance and waivers should fall with the original information and the original 180-day time limit should be restored. Under this theory, the time limit would have expired on…
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State v. Carmine A. Stanzione and Peter Joseph Salerno, 315 So. 2d 500 (Fla. 4th DCA 1975)…endant charged by Information with a felony if he has not been tried within 180 days of arrest unless certain delays are excused. The Court finds no excused delays, nor any delays by defendants which may be charged against them. See Swanson v. Love, 290 So. 2d 112 (2 DCA 1974).” Unquestionably, more than 180 days elapsed between November 29, 1973, the time defendants were taken into custody, and July 17, 1974, the last date set for trial and the date on which the State sought to file a second amended informa…
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Oakley Riley Griffith v. State, 299 So. 2d 618 (Fla. 2d DCA 1974)…is case until January 14, 1974. In any event, the appellant through his counsel is chargeable under Criminal Procedure Rule 3.191 with the 11-day delay caused by his request for the two continuances outlined above. Swanson v. Love, Fla.App.2d 1974, 290 So. 2d 112. When the 11-day delay is added to the 180 days, the last permissible trial date would have fallen on January 17, 1974. For the foregoing reasons the order denying appellant’s discharge is hereby Affirmed. McNULTY, J., and JOANOS, JAMES E., Assoc…
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