STATE OF FLORIDA, APPELLANT,
v.
THOMAS WALTER ANGLIN,
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The court held that a defendant's appeal tolls the speedy trial period, as the defendant is not continuously available for trial during the appeal's pendency.
The state appealed two orders discharging the appellee for failure to bring him to trial within the 180-day speedy trial period. The trial court charg…
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GRIMES, Judge.
The state appeals two orders discharging appellee for failure to bring him to trial within the 180-day period prescribed by the Speedy Trial Rule. The court charged the state with the period of time it took appellee to prosecute an unsuccessful appeal from a pretrial ruling. The court construed State v. Williams, Fla.App.2nd, 1973, 287 So. 2d 415, as requiring the state to obtain an extension of the speedy trial time pending the appeal even where the appeal was being taken by the defendant.
In State v. Williams, supra, this court held that in the absence of an order of extension, the speedy trial time was not tolled while the state was appealing the dismissal of a charge arising out of the same factual circumstances covered by the pending information. No opinion was expressed upon the effect on the speedy trial time of an appeal by the defendant. However, in State ex rel. Simonds v. Hall, Fla.App.2nd, 1976, 326 So. 2d 443, decided after the order of discharge entered below, we held that the speedy trial time was tolled during the pendency of a defendant’s cross-petition for certiorari because he was not continuously available for trial within the meaning of RCrP 3.191(a)(1). If the defendant is availing himself of the right to prosecute an appeal, he is in no position to complain that he is being denied his right to a speedy trial.
The other arguments advanced by appellee in support of the ruling are without merit. The orders of discharge are reversed.1 The state will have 90 days from the receipt of the mandate within which to bring the appellee to trial. See State v. Glidewell, Fla.App.2nd, 1975, 311 So. 2d 126; State v. Vinson, Fla.App.2nd, 1974, 294 So. 2d 418.
McNULTY, C. J., and HOBSON, J., concur. . While not essential to this opinion, our holding in this case is buttressed by the fact that upon the institution of the appeal the court entered an order upon appellee’s motion postponing the trial until the outcome of the appeal.
Cases With Similar Vibessemantic neighbors from the corpus
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State v. Beckett, 357 So. 2d 448 (Fla. 2d DCA 1978)…to the state’s Rule 3.191(d)(2) motion. Where, as in this case, however, the appellate court reverses an order of discharge and remands for trial, the state is allowed ninety days from receipt of that mandate to commence trial. See State v. Anglin, 333 So. 2d 502 (Fla.2d DCA 1976); Fla.R.Crim.P. 3.191(g). . The accused’s right to a speedy trial under the constitutional guarantee of trial within a reasonable time is not affected by a waiver of the speedy trial period set out by the Florida rules of procedure…
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Eire v. The Honorable Frank N. Kaney, 393 So. 2d 649 (Fla. 5th DCA 1981)…. The balance of this time will begin running again when this opinion is final. Petition DENIED. DAUKSCH, C. J., and ORFINGER, J., concur. . The defendant could have proceeded to trial and still preserved this point on appeal. . State v. Anglin, 333 So. 2d 502 (Fla. 2d DCA), cert. denied 342 So. 2d 1100 (Fla. 1976); Rosenwasser v. Smith, 308 So. 2d 600 (Fla. 3d DCA 1975). . State v. Bufford, 383 So. 2d 928 (Fla. 5th DCA 1980). Effective Jan. 1, 1981, the revised rule starts the 90-day period running from…
Authorities Cited
- State v. Williams, 287 So. 2d 415 (Fla. 2d DCA 1973)
- State v. Vinson, 294 So. 2d 418 (Fla. 2d DCA 1974)
- State v. Glidewell, 311 So. 2d 126 (Fla. 2d DCA 1975)
- The State of Fla. ex rel. Milton Simonds v. The Honorable W. Troy Hall, Jr., 326 So. 2d 443 (Fla. 2d DCA 1976)