STATE OF FLORIDA, APPELLANT,
v.
JIMMY FRED WILSON, APPELLEE
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Florida appeals from a trial court's dismissal and discharge of defendant Wilson on speedy trial grounds. The state appealed the dismissal order but failed to request an extension of the 180-day speedy trial period, and the appellate court held that pendency of the state's appeal does not automatically toll the speedy trial clock, rendering the appeal moot.
No. Pendency of a state appeal does not automatically extend the speedy trial period. The right to speedy trial is a fundamental right that should not be limited absent specific provision in the rules. Since the Florida Rules of Criminal Procedure do not explicitly address the situation of a state appeal from a dismissal order, the state must affirmatively request an extension or continuance to toll the 180-day speedy trial period.
[1] A pending appeal by the state from an order of dismissal does not automatically toll the speedy trial period absent a specific rule provision or a motion for extension.
[2] The speedy trial period is not automatically extended by the pendency of a state's appeal from a dismissal order unless the rules specifically provide for such an extensi…
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Join FLexlaw to unlock all legal intelligence“The right to speedy trial as established in the sixth amendment is a fundamental right and should not be limited absent specific provision in the rules for the particular circumstance in question.”
Establishes the foundational principle that speedy trial rights cannot be implicitly limited and require explicit rule provisions
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Join FLexlaw to unlock all legal intelligenceWilson was arrested on March 21, 1974. The trial court dismissed the information against him and ordered his discharge on August 13, 1974. The state f…
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NATHAN, Judge.
The defendant was arrested on March 21, 1974. Subsequently he was discharged and the information against him was dismissed by order of the Circuit Court recorded August 13, 1974. The state filed its notice of appeal of the order of dismissal and discharge on September 12, 1974, but never requested an extension of the speedy trial period, and upon the expiration of 180 days, defendant moved the trial court for discharge pursuant to Rule 3.191(d)(3), RCrP. The motion was denied on the basis of lack of jurisdiction due to this pending appeal. The defendant now presents a motion to dismiss the appeal on the ground that the state’s failure to bring the defendant to trial within 180 days renders the cause moot.
The issue, simply stated is whether pendency of an appeal by the state from an order of the trial court dismissing the information and/or discharging the defendant is to be deemed a “continuance” or “tolling of time” as a matter of law under the speedy trial rule where the state has not moved the trial court for an extension or continuance. The answer, based on the authority of Carroll v. State, Fla.1971, 251 So. 2d 866, is clearly no, and we agree with this result.
The right to speedy trial as established in the sixth amendment is a fundamental right and should not be limited absent specific provision in the rules for the particular circumstance in question. Although the rules address themselves to extensions during interlocutory appeals,1 and the time limit for a new trial after declaration of a mistrial, or an order or notice for a new trial,2 there is no provision for the situation sub judice, to-wit: appeal by the state from a motion to dismiss. Therefore, it follows that in order for there to be an automatic extension of the time it must be specifically written into the rule to be operative.
The defendant is entitled to be discharged for the state’s failure to obtain an extension or continuance due to exceptional circumstances.
Therefore, the appeal is rendered moot, the motion to dismiss the appeal is granted and the defendant is discharged.
It is so ordered.
. Rule 3.191(d) (2) (iv), RCrP. . Rule 3.191(g), RCrP.
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Citator
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State v. Cannon, 332 So. 2d 127 (Fla. 4th DCA 1976)…simply for the purpose of securing such a delay. Accordingly, we affirm the trial judge’s order discharging the defendant under Rule 3.191(d)(1). See also State v. Wells, 326 So. 2d 175, at 176 (Fla.1976) (opinion of Hatchett, J.); State v. Wilson, 305 So. 2d 232 (Fla.App.3rd 1974); [*128] State v. Williams, 287 So. 2d 415 (Fla.App.2d 1973); Esperti v. State, 276 So. 2d 58 (Fla.App.2nd 1973); State v. Byrne, 331 So. 2d 394 (Fla.App.4th 1976). AFFIRMED. WALDEN, C. J., and CROSS, J., concur.…
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State v. Wells, 326 So. 2d 175 (Fla. 1976)…stody and no application for an order extending time for trial was made, as required by Rule 3.-191(d) (2) (iv), RCrP. See Mullin v. State, Fla.App., 307 So. 2d 829 cert. denied sub nom. State v. Mullin, Fla., 317 So. 2d 761 (1975); State v. Wilson, 305 So. 2d 232 (Fla.App., 3d Dist.1974); State v. Williams, 287 So. 2d 415 (Fla.App., 2d Dist.1973); Esperti v. State, 276. So. 2d 58, 64 (Fla.App., 2d Dist.1973). The petition for writ of certiorari is dismissed. ROBERTS and BOYD, JJ., concur. ADKINS, C. J., a…
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State v. Pearce, 336 So. 2d 1274 (Fla. 1st DCA 1976)…ble order under § 924.071 until a substantial portion of the speedy trial period has run. It will therefore frequently be difficult if not impossible to render an appellate decision within the unextended period for speedy trial. See State v. Wilson, 305 So. 2d 232 (Fla.App. 3d, 1974), cert. den. 314 So. 2d 781 (Fla.1975). Therefore, given the State’s right to appeal the interlocutory orders described in § 924.071(1), an automatic stay of the trial and a corresponding extension of the speedy trial period is es…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Carroll v. State, 251 So. 2d 866 (Fla. 1971)