LEO JENKINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Leo Jenkins was charged with marijuana possession with intent to sell. After the trial court granted his motion to suppress evidence, the State appealed and obtained an interlocutory reversal. Jenkins then moved to discharge based on violation of speedy trial rights, claiming the State received an improper automatic extension of time during its appeal. The court held that the State is not entitled to an automatic extension simply because an appeal is pending.
The appellant's speedy trial rights were violated. The State cannot be granted an automatic extension of time simply because it has an appeal pending; rather, any extension must be limited to a period equal to the actual time consumed by the appeal. The trial court erred in denying Jenkins's motion for discharge.
[1] A defendant cannot be denied their right to a speedy trial due to an automatic extension of time granted to the State simply because an appeal was pending.
[2] The State must request an extension of time for a speedy trial for a period equal to the time consumed by its appeal.
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Join FLexlaw to unlock all legal intelligence“The appellant cannot be denied his right to a speedy trial because of any "automatic" extension of time granted to the State or assumed by the State, simply because the State had an appeal pending.”
Establishes the core holding that automatic extensions based on pending appeals violate speedy trial rights.
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Join FLexlaw to unlock all legal intelligenceJenkins was charged by information on August 28, 1974, with possession of more than five grams of marijuana with intent to sell. He failed to appear f…
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FOGLE, Judge.
The appellant, defendant below, was charged by information with possession of more than five grams of marijuana with intent to sell same. The information was filed on August 28,1974, and the defendant failed to appear for formal arraignment on September 23, 1974.
The appellant was re-arrested on January 23, 1975, and on January 27, 1975, he entered a plea of not guilty. On March 10, 1975, a motion to suppress the State’s physical evidence was filed and granted by the trial court. The State filed an interlocutory appeal to this Court from the Order granting the motion to suppress and this Court reversed the Order of the trial court, issuing its mandate on October 24, 1975.
At the time it filed the interlocutory appeal, the State sought, and was granted, an Order extending the time for speedy trial. The motion for same specifically requested a six month extension of the time and the Order granting same extended the time for six months, commencing on March 19,1975.
After this Court’s mandate issued, which was more than six months from the date of said Order, the defendant-appellant moved for discharge for failure to comply with the speedy trial rule. Appellant’s motion was denied and he thereafter entered a plea of nolo contendere, reserving his right to appeal the trial court’s denial of his motion for discharge and the cause is before us on appeal from that Order denying discharge.
The appellant cannot be denied his right to a speedy trial because of any “automatic” extension of time granted to the State or assumed by the State, simply because the State had an appeal pending. The State should have asked for an extension of time for a period equal to the time consumed by the appeal. State v. Cannon, 332 So. 2d 127 (Fla. 4th DCA 1976); Mallín v. State, 307 So. 2d 829 (Fla. 3d DCA 1975).
Therefore the cause is reversed and remanded to the trial court with directions to discharge the defendant.
ANSTEAD, J., concurs.
DOWNEY, J., concurs specially.
DOWNEY, Judge,
concurring specially:
This court has previously held that Section 924.071(2), Florida Statutes (1975), does not automatically toll the time set forth in Fla.R.Crim.P. 3.191, for trying a defendant. State v. Cannon, 332 So. 2d 127 (Fla. 4th DCA 1976). Because I feel bound to follow the Cannon holding, I concur in the decision to reverse appellant’s judgment of conviction.
However, if the question of the effect of Section 924.071(2) were before us for the first time I would vote to affirm the judgment of conviction (and the underlying order denying appellant’s motion for discharge filed pursuant to Rule 3.191) on authority of the analysis of Section 924.071(2), contained in State v. Pearce, 336 So. 2d 1274 (Fla. 1st DCA 1976).
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State v. Jenkins, 389 So. 2d 971 (Fla. 1980)…OVERTON, Justice. This is a petition for writ of certiorari to review a decision of the Fourth District Court of Appeal, reported at 349 So. 2d 1192 (Fla. 4th DCA 1977). The issue concerns the proper application of the existing speedy trial rule1 after an interlocutory appeal has been filed by the state. The instant case relied on the decisions of Cannon v. State, 332 So. 2d 127 (Fla. 4th DCA 19…
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Tucker v. State, 357 So. 2d 719 (Fla. 1978)…e that a stay pending the state’s appeal of pre-trial orders can only be obtained by motion in the trial court, compare State v. Smail, 346 So. 2d 641 (Fla.2d DCA 1977), and State v. Pearce, 336 So. 2d 1274 (Fla.1st DCA 1976), with Jenkins v. State, 349 So. 2d 1192 (Fla.4th DCA 1977), State v. Cannon, 332 So. 2d 127 (Fla.4th DCA 1976), and Mullin v. State, 307 So. 2d 829 (Fla.3d DCA 1974), cert. denied, 317 So. 2d 761 (Fla.1975), the court below correctly determined that the automatic statutory stay would not…
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State v. Carter, 397 So. 2d 679 (Fla. 1981)…rning the security of an accused’s right to a speedy trial. See, e. g, Stuart v. State, [*681] 360 So. 2d 406 (Fla.1978); Allen v. State, 275 So. 2d 238 (Fla.1973); State ex rel. Smith v. Nesbitt, 355 So. 2d 202 (Fla. 3d DCA 1978); Jenkins v. State, 349 So. 2d 1192 (Fla. 4th DCA 1977); State v. Jones, 332 So. 2d 699 (Fla. 1st DCA 1976); State v. Cannon, 332 So. 2d 127 (Fla. 4th DCA 1976); Mullin v. State, 307 So. 2d 829 (Fla. 3d DCA 1974), cert. denied, 317 So. 2d 761 (Fla.1975); Riggins v. State, 301 So. 2d 1…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mullin v. State, 307 So. 2d 829 (Fla. 3d DCA 1974)
- State v. Cannon, 332 So. 2d 127 (Fla. 4th DCA 1976)
- State v. Pearce, 336 So. 2d 1274 (Fla. 1st DCA 1976)