THE STATE OF FLORIDA, APPELLANT,
v.
CARLOS ALBERTO EXPOSITO, APPELLEE
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Florida appeals the trial court's dismissal of criminal charges against Expósito for failure to bring him to trial within 90 days of mistrial declaration. The appellate court reverses, holding that Expósito was not entitled to discharge because he failed to appear in court on the scheduled trial date, thereby breaking his continuous availability for trial.
The defendant is not entitled to discharge because he was not continuously available for trial. Rule 3.191(e) provides that a person not continuously available for trial is not entitled to discharge, and Expósito's absence on February 20, 1975 demonstrates he was not continuously available.
[1] A defendant who is not continuously available for trial is not entitled to discharge under speedy trial rules.
[2] A defendant's failure to appear for a scheduled trial, along with their counsel, renders them unavailable for trial.
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Join FLexlaw to unlock all legal intelligence“A person who is not continuously available for trial is not entitled to be discharged.”
States the core rule from RCrP 3.191(e) that controls the case
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Join FLexlaw to unlock all legal intelligenceIn November 1973, Expósito and co-defendant Hernandez were informed against on drug possession charges. Trial commenced December 10, 1974, but on Dece…
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PER CURIAM.
The State of Florida seeks reversal of an order granting defendant’s motion for discharge for failure to bring him to trial within the time prescribed by RCrP 3.-191(g).
In November 1973 defendant, Carlos Ex-pósito, along with Jose Hernandez was informed against on several counts including possession of a controlled substance. After defense counsel requested a continuance and waived speedy trial, the case came on for trial on December 10, 1974 at which time voir dire examination of the jury panel was conducted. On the following day, December 11, the State announced that certain evidence accidently had been destroyed and as a result, upon motions of both the defendant and co-defendant, the trial judge declared a mistrial and a new trial was scheduled for February 19, 1975 and then set over until the next day. On February 20 co-defendant Hernandez and his counsel appeared, but defendant and his counsel were absent. Counsel for Hernandez informed the trial judge that counsel for defendant Expósito was down the hall. Thereupon, the trial judge set April 7 as the new trial date. On March 21 the defendant filed a motion for discharge pursuant to RCrP 3.191(g)1 on the ground that he had not been brought to trial within 90 days from the date of declaration of mistrial on December 11. The motion was granted. We reverse.
RCrP 3.191(e)2 clearly provides that a person who is not continuously available for trial is not entitled to be discharged. The record affirmatively demonstrates that defendant and his counsel did not appear (as required) before the court on February 20, 1975 and, thus, defendant was not continuously available.
Accordingly, we reverse the order of dismissal and remand the cause to the trial court for further proceedings.
It is so ordered.
. “(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.”
. “(e) Availability for Trial. The trial of an accused who is not available shall be held in abeyance while such person is unavailable. A person who has not been continuously available for trial during the term provided for herein is not entitled to be discharged; no presumption of non-availability attaches, but if the State objects to discharge and presents any evidence tending to show nonavailability, the accused then must by competent proof establish continuous availablity during the term.”
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Alphonso Stuart v. State, 360 So. 2d 406 (Fla. 1978)…II in connection with petitioner’s availing himself of the opportunity to engage in plea negotiations. The state makes a further argument of lack of continuous availability based on the defendant’s absence on the 180th day, citing State v. Exposito, 327 So. 2d 836 (Fla.3d DCA 1976). There, after declaration of a mistrial, a new trial was scheduled. When the appointed time arrived, the defendant and his counsel did not appear. Counsel for a codefendant informed the court that counsel for defendant was “down th…
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State v. Waldo Toyos, 448 So. 2d 1135 (Fla. 3d DCA 1984)…ion for continuance operates as waiver of speedy trial where counsel is aware of co-defendant’s motion, participates in subsequent discovery, and takes no affirmative action to inform the trial court of his desire to go to trial); State v. Exposito, 327 So. 2d 836 (Fla. 3d DCA 1976) (where counsel for defendant is “down the hall” when case is called for trial, defendant is not continuously available for trial); State v. Kelley, 322 So. 2d 581 (Fla. 1st DCA 1975) (speedy trial waived where defendant’s attorney…
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State v. Kubesh, 378 So. 2d 121 (Fla. 2d DCA 1980)…t occurred on January 5 speedy trial was waived. There is no doubt that it was waived as to Gopsill because neither he nor his attorney appeared before the court on that date. Thus, they were not ready and available for trial. See State v. Exposito, 327 So. 2d 836 (Fla. 3d DCA 1976), and Fla.R.Crim.P. 3.191(e). We also conclude that Kubesh’s attorney waived speedy trial. To begin with, his comments at the hearing on January 5 indicate that he was not prepared for trial, but that he and Gopsill’s attorney wer…
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