STATE OF FLORIDA EX REL. CHRISTOPHER N. GIRARD, RELATOR,
v.
JOSEPH P. MCNULTY ET AL., RESPONDENTS
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The Florida Supreme Court upheld the validity of a speedy trial time extension granted ex parte by the circuit court pending the State's appeal of a dismissal order. The Court held that dismissal of a criminal information constitutes an 'exceptional circumstance' under the speedy trial rule that justifies extending time without notice to the accused.
The Court held that the speedy trial time was validly extended ex parte because dismissal of an information constitutes an 'exceptional circumstance' as defined by the speedy trial rule—circumstances that as a matter of substantial justice to either party require an order of the court. The extension was necessary to allow the State to prosecute its appeal without the defendant's speedy trial rights expiring.
[1] Dismissal of an information constitutes an exceptional circumstance justifying an extension of speedy trial time under Rule 3.191(d)(e), Fla.R.Crim.P., to permit the Stat…
[2] Exceptional circumstances for extending speedy trial time are not limited to those enumerated in Rule 3.191(f), Fla.R.Crim.P., but include situations requiring substantia…
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Join FLexlaw to unlock all legal intelligence“Exceptional circumstances are those which as a matter of substantial justice to the accused or the State or both require an order of the Court.”
Establishes the broad definition of 'exceptional circumstances' under the speedy trial rule that is not limited to enumerated examples.
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Join FLexlaw to unlock all legal intelligenceGirard was arrested on August 14, 1975, and charged with sale of marijuana in circuit court. On January 19, 1976, the circuit court granted Girard's m…
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BOYD, Justice.
Relator Christopher Girard filed a Suggestion for Writ of Prohibition asking this Court to prohibit the District Court of Appeal, Second District, from exercising jurisdiction in the case of State v. Stewart, et al., Case No. 76-140. We issued a Rule Nisi in Prohibition commanding the respondents to show cause why the writ should not issue. The respondents’ brief in opposition to the suggestion has been received,
On August 14,1975, Girard, Wayne Stewart and John Tudor were arrested and charged by information in the Circuit Court, Sixth Judicial Circuit, in and for Pinellas County, with sale of marijuana. Girard moved to dismiss the information for its failure to allege grounds necessary to charge a felony or alternatively to transfer the cause to county court which has jurisdiction over misdemeanors. On January 19, 1976, the Motion to Dismiss was granted by order of the circuit court. It is not clear from the conformed copy of the record filed in this Court whether the cause was transferred to county court but, in any event, the information filed in circuit court was dismissed.
On January 23, 1976, the State filed its Notice of Appeal in the Second District Court of Appeal for review of the dismissal order. On the same day, on the State’s motion, the circuit court ordered that the running of the Speedy Trial time, under Rule 3.191, Fla.R.Crim.P., be extended for a time as may be reasonably necessary for the State to prosecute its appeal and reset the case for trial. Girard then moved that the circuit court vacate the “extension” order for failure of the State to serve him notice of the hearing on it. The court, ruled that the dismissal of the information created an exceptional circumstance which permitted the court, by Rule 3.191(d)(e), Fla.R. Crim.P., to extend the Speedy Trial Rule time on an ex parte motion. Accordingly, the Motion to Vacate was denied. Girard then moved to dismiss the appeal before the district court on the ground that it is moot. The motion was denied and this suggestion for prohibition followed.
If the time under the Rule was not validly extended, then it has expired1 and Girard, upon proper motion, and finding of availability for trial, must be forever discharged from the crime. Rule 3.191(a)(1), Fla.R.Crim.P. Discharge moots the State’s appeal so that the district court has lost jurisdiction and should be prohibited from' proceeding on it.2
Girard contends that the time was not validly extended because dismissal of an information is not one of the “exceptional circumstances” (enumerated in subparagraph (f) of the Speedy Trial Rule) which permits the time to be extended on an ex parte motion. The contention fails. “Exceptional circumstances” are not limited to those enumerated. The definition provided by subparagraph (f) of the Rule is much broader:
“Exceptional circumstances are those which as a matter of substantial justice to the accused or the State or both require an order of the Court.”
The information against Girard charges that on August 14,1975, he'“did unlawfully sell a certain controlled substance, to-wit: marijuana . . . contrary to Chapter 893.13, Florida Statutes. . . .” The trial court was correct in ruling that an extension order was required as a matter of justice to the State to permit it to litigate before the district court whether such an information charges more than misdemean-or delivery of cannabis:
“If the first offense is the ... delivery without consideration of not more than five grams of cannabis-that person shall be guilty of a misdemeanor. . . ” Section 893.13(f), Florida Statutes, (emphasis supplied)
The extension order is valid despite its ex parte nature, the appeal is not moot and the district court may proceed on it. The Rule Nisi in Prohibition is discharged.
It is so ordered.
OVERTON, C. J., and ENGLAND, SUNDBERG and HATCHETT, JJ., concur. . 180 days having passed since Girard was taken into custody August 14, 1975 (the day of his arrest).
. Prohibition is a proper remedy to prevent a lower court from proceeding on a cause over which it does not have jurisdiction.
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Sherrod v. The Honorable Arthur J. Franza, 427 So. 2d 161 (Fla. 1983)…, public defenders, state attorneys, jurors, witnesses, and many court officials incident to the operation of the courtroom. In our opinion the remedy by prohibition is a speedy and efficient one. The recent case of State ex rel. Girard v. McNulty, 348 So. 2d 311 (Fla.1977), involved a speedy trial issue. In Girard we held that: If the time under the Rule was not validly extended, then it has expired and Girard, upon proper motion, and finding of availability for trial, must be forever discharged from the c…
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Lowe v. The Honorable Joseph E. Price, 437 So. 2d 142 (Fla. 1983)…his motion for discharge has been denied. See, Sibert v. Hare, 276 So. 2d 523 (Fla. 4th DCA 1973). Prohibition is a proper remedy to prevent a lower court from proceeding in a cause over which it has no jurisdiction. State ex rel. Girard v. McNulty, 348 So. 2d 311 (Fla.1977), and a court does not have jurisdiction to try a defendant when he is entitled to discharge because his right to speedy trial has been violated. Having so concluded, we now turn to whether the trial court erred in denying defendant’s moti…
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Dep't of Agric. & Consumer Servs. v. Bonanno, 568 So. 2d 24 (Fla. 1990)…mages, attorney’s fees, or costs, from which no appeal has been taken. Ch. 89-91, § 2(2)(a), Laws of Fla. Because the Act purports to remove jurisdiction from Judge Bonanno’s court, prohibition is the proper remedy. State ex rel. Girard v. McNulty, 348 So. 2d 311 (Fla.1977). Preliminarily, we disagree with Judge Bonanno that the Act “applies only to citrus nursery plants and not to trees pulled from groves” and therefore is inapplicable to plaintiffs Sweat and Janvrin who are grove owners.1 Although the Act…
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