RONALD B. SHUMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court reversed denial of motion to dismiss for lack of speedy prosecution, holding that defendant is entitled to an evidentiary hearing to prove prejudice from delay, not merely the passage of time.
A defendant challenging denial of a motion to dismiss for failure to speedily prosecute must be afforded an evidentiary hearing and must prove actual prejudice from delay, not merely the passage of time.
[1] A defendant challenging denial of a motion to dismiss for lack of speedy prosecution must prove actual prejudice from delay rather than merely the passage of time between…
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Join FLexlaw to unlock all legal intelligenceShuman entered a plea of nolo contendere while reserving the right to appeal and challenged the trial court's denial of his motion to dismiss based on…
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BOYER, Chief Judge.
After entering a plea of nolo contendere, specifically reserving the right to appeal, Shuman challenges the trial court’s order denying his motion to dismiss founded upon the ground that he was denied due process because of the failure by the state to “speedily prosecute”. The trial court, without entertaining defendant’s proffer, denied the motion to dismiss citing United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), and United States v. Zane, 489 F. 2d 269 (5th Cir. 1973). An examination of the record reveals that appellant’s motion to dismiss alleged prejudice “as a result of the delay”. Indeed, the allegations of the motion are substantially the same as those considered by this Court in State v. Griffin, 347 So. 2d 692, Opinion filed this date. Accordingly, pursuant to Griffin, this ease is reversed and remanded with directions that the trial court grant an evidential hearing on the allegations contained in the motion to dismiss. As we held in the Griffin case, however, in order for appellant to prevail on his motion to dismiss he must prove substantially more than the mere passage of time between the date of the alleged defense and the date of commencement of prosecution. He must address the factors discussed in that case, which were not intended to be exhaustive, particularly his allegation of prejudice.
We do not by this opinion hold that any of those factors have been established, but only that appellant is entitled to an opportunity so to do.
IT IS SO ORDERED.
RAWLS and SMITH, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Griffin, 347 So. 2d 692 (Fla. 1st DCA 1977)
Authorities Cited
- United States v. Marion, 404 U.S. 307 (U.S. 1971)
- State v. Griffin, 347 So. 2d 692 (Fla. 1st DCA 1977)
- United States v. Zane, 489 F.2d 269 (5th Cir. 1973)