LESTER JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Johnson appealed his conviction on a subsequent felony offender charge, arguing he was denied a speedy trial because the state did not bring him to trial within 90 days of the appellate court's mandate requiring a new proceeding on the recidivism charge. The court affirmed, holding that the 90-day rule did not apply because Johnson had never been tried on the subsequent felony offender charge initially, and the speedy trial clock ran from the filing of the recidivism information, affording the state one year to try him since he was imprisoned.
No. The 90-day rule under RCrP 3.191(g) did not apply because Johnson had not been previously tried on the subsequent felony offender charge; the mandate did not make possible a 'new trial' but rather made possible an initial trial on that charge. Since Johnson was imprisoned when the information was filed, the speedy trial period ran from the filing of the information under RCrP 3.191(b)(1), affording the state at least one year to bring him to trial, which it did timely.
[1] A subsequent felony offender charge requires a separate information alleging specific prior offenses.
[2] A defendant incarcerated in prison is entitled to at least one year to be brought to trial after the filing of an information.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A person who is to be tried again shall be brought to trial within 90 days from the date of declaration of a mistrial by the trial court, the date of an order by the trial court granting a new trial, the date of an order by the trial court granting a motion in arrest of judgment, or the date of receipt by the trial court of a mandate, order, or notice of whatever form from an appellate or other reviewing court which makes possible a new trial for the defendant, whichever is last in time.”
The rule at issue requiring trial within 90 days of a mandate making possible a new trial
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Join FLexlaw to unlock all legal intelligenceJohnson was convicted of attempted lewd and indecent assault on a child under fourteen and sentenced to ten years as a subsequent felony offender. On …
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GRIMES, Judge.
Appellant, Lester Johnson, contends that he was not afforded a speedy trial. Appellant was convicted of an attempt to commit a lewd, lascivious and indecent assault upon a child under the age of fourteen years. The maximum punishment for this crime was five years imprisonment. The court, however, determined that appellant was a subsequent felony offender under Fla.Stat. § 775.084 (1971) and summarily sentenced appellant to a ten-year term. Upon appeal and at 292 So. 2d 426, this court affirmed the judgment but vacated the sentence, holding that the enhanced sentence imposed on appellant as a recidivist could not be imposed without the state having first filed a separate information alleging specific prior offenses upon which recidivism was predicated. We based our ruling upon Fla.Stat. § 775.11 (1971) [repealed by § 66, Chapter 74—383, effective July 1, 1975],
This court’s mandate was received by the trial court on April 18, 1974. On June 25, 1974, an information was filed charging Johnson as a subsequent felony offender. On July 12, 1974, the court issued an order for Johnson’s return from Union Correctional Institution where he was then incarcerated to answer the subsequent felony offender charge. On October 23, 1974, appellant filed a motion to discharge pursuant to RCrP 3.191. The motion was denied the following day. The case was tried by a jury on October 30, 1974, and appellant was convicted.
Appellant contends that the state had to bring him to trial on the charge of being a subsequent felony offender within ninety days of the receipt of the mandate of this court pursuant to RCrP 3.191(g). This rule provides:
“(g) Effect of Mistrial, Order of New Trial. A person who is to be tried again shall be brought to trial within 90 days from the date of declaration of a mistrial by the trial court, the date of an order by the trial court granting a new trial, the date of an order by the trial court granting a motion in arrest of judgment, or the date of receipt by the trial court of a mandate, order, or notice of whatever form from an appellate or other reviewing court which makes possible a new trial for the defendant, whichever is last in time.”
While it is true that had it not been for the mandate there would have been no requirement to have a trial on the charge of recidivism, can it be said that the mandate made possible a new trial? We think not. Johnson had not been tried as a subsequent felony offender before he was sentenced as such. Our previous opinion set aside his sentence for this reason.
The record reflects that appellant was in prison serving sentences imposed in Dade County in 1969 when the information charging him with being a subsequent felony offender was filed. Therefore, pursuant to RCrP 3.191(b)(1), the speedy trial time commenced to run upon the filing of the information. Because appellant was imprisoned, the state had at least one year within which to bring him to trial. The trial was timely, so the motion for discharge was properly denied.
We recognize that the provisions of the speedy trial rule could be construed to reach the opposite result on these particular facts, but we believe that our interpretation is consistent with what the rule is intended to accomplish.
Appellant’s other point on appeal is without merit.
Affirmed.
McNULTY, C. J., and BOARDMAN, J., concur.