STATE OF FLORIDA, APPELLANT,
v.
FLOYD REESE AND FREDRICK RAYMOND DOWN, APPELLEES
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Florida appeals the discharge of felony charges against Reese and Down for violation of speedy trial rights. The court affirms, holding that after a state-requested continuance, trial must commence within 90 days, provided the 180-day constitutional minimum has also elapsed, and no further defense continuances or waivers have occurred.
The court affirms discharge of charges. After a state-requested continuance, the basic constitutional time limit for trial commencement is no more than 90 days, provided: (1) the 180-day rule under Fla.R.Crim.P. 3.191(a)(1) has run; (2) the defendant gave no specific waiver of speedy trial rights; and (3) the defendant filed no further continuance requests after the state did. Any prior defense continuances are irrelevant to calculating the 90-day post-state-continuance period.
[1] A continuance charged to the defense that occurred before a continuance charged to the State is of no consequence in calculating speedy trial time when the defendant has…
[2] A defendant's motion for discharge is timely when filed more than 180 days after initial custody and more than 90 days after a State-requested continuance, absent further…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Any continuance charged to the defense that occurred before the continuance charged to the state shall be of no consequence.”
Trial court's ruling on how to calculate speedy trial time periods, which the appellate court endorsed as correct.
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Join FLexlaw to unlock all legal intelligenceDefendants Reese and Down were awaiting trial on felony charges. The defense initially requested a continuance, followed by state-requested continuanc…
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LETTS, Judge.
While awaiting trial on felony charges, the defense requested a continuance. Thereafter, in these consolidated appeals, the State requested, and received, 1 continuance in the first case and 3 in the second. In both cases the defendant moved for discharge more than 90 days after a State requested continuance and more than 180 days after the original taking into custody. The trial court granted the motion to discharge in both cases. We affirm.
To reach this conclusion the trial judge ruled that:
“Any continuance charged to the defense that occurred before the continuance charged to the state shall be of no consequence.”
We agree, because in these two cases the defendant gave no specific waiver of his right to speedy trial, nor did he file any further requests for continuances after the State did. The result therefore, is controlled by the Supreme Court holding in Negron v. State, 306 So. 2d 104 (Fla.1974).
To us, Negron is exactly on point and affirmance of these two cases now before us would normally not merit an opinion. However, the State here argues that, neither the district courts, nor the Supreme Court, have followed Negron. To this end, the State eites State ex rel. Gadson v. Tyson, 334 So. 2d 56 (Fla. 4th DCA 1976) and Coppola v. State, 318 So. 2d 181 (Fla. 2nd DCA 1975) affirmed, 337 So. 2d 779 (Fla.1976).
In Gadson, supra, we had a similar sequence of events to those now before us, except for the vitally important distinction that the motion for discharge was filed only 173 days after the custody date. We agree with and reaffirm Gadson, but by contrast in the consolidated cases at bar, the motions for discharge were filed after the passage of 180 days from custody. In Coppola, on the other hand, there was a specific waiver of the right to speedy trial under Rule 3.191(d)(2)(i) which is not so in the cases at bar. We thus distinguish them.
The State also argues that the Florida Supreme Court erroneously applied Fla.R. of Crim.P. 3.191(d)(3) in Negron, because that rule merely provides that the trial must commence within 90 days from the voiding of a motion to discharge and says nothing whatever about the trial having to commence within 90 days from a State continuance. We agree that the rule does not so state and admit to being perplexed at the wording of the opinion in Negron.
However, we certainly cannot ignore the result and would point out that it appears to us that the Supreme Court, in Negron, borrowed the 90 day provision from Rule 3.191(d)(3) and adapted its time provision for use as a parallel, in conjunction with the general precepts set forth in the Constitution and in Butler v. Cullen, 253 So. 2d 861 (Fla.1971), (see Negron at p. 107). In Butler the Supreme Court specifically held that even when the speedy trial rule has been specifically waived and the 180 day rule rendered inapplicable thereby, it is still incumbent upon the trial court to set the time for trial within the parameters of basic speedy trial constitutional guarantees.
We must conclude then that, in the event of a State continuance, whether or not it follows an earlier defense continuance, the basic constitutional time limit, for the commencement of trial, is no more than 90 days after any State continuance, which is uninterrupted by any further defense motions for continuance or waivers, PROVIDING that the requisite 180 days has also run under Fla.R.Crim.P. 3.191(a)(1).
AFFIRMED.
ANSTEAD, J., and MINER, Jr., Associate Judge, concur. . Similar misgivings were enunciated in our Gadson opinion (supra, at p. 58).
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Citator
Cited By (11 total)
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Honorable Robert A. Butterworth v. Fluellen, 389 So. 2d 968 (Fla. 1980)…found that the defendant was entitled to a discharge because the state failed to bring her to trial within the ninety-day period set forth in Rule of Criminal Procedure 3.191(d)(3). The district court also cited its prior decision in State v. Reese, 359 So. 2d 33, 34 (Fla. 4th DCA 1978), cert. denied, 365 So. 2d 715 (Fla.1978), in which it stated: [I]n the event of a State continuance, whether or not it follows an earlier defense continuance, the basic constitutional time limit, for the commencement of tria…
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State v. Bufford, 383 So. 2d 928 (Fla. 5th DCA 1980)…e’s proper Motion for Continuance, which was granted, also took this matter out of the strict operation of the Speedy Trial Rule. Id. at 892. In granting the appellee’s motion for discharge in this case, the trial court relied upon State v. Reese, 359 So. 2d 33 (Fla. 4th DCA 1978), cert. denied 365 So. 2d 715 (Fla.1978), which is apparently in conflict with Kurtz and Coppola v. State, 318 So. 2d 181 (Fla.2d DCA 1975), aff’d 337 So. 2d 779 (Fla.1976). While we agree confusion has naturally resulted from th…1 / 2
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Luhrs v. State, 394 So. 2d 137 (Fla. 5th DCA 1981)…peration is if the defendant files a motion for discharge; in that event, he must be brought to trial within ninety days after that motion is filed. Bufford at 930. See also State v. Kurtz, 354 So. 2d 890 (Fla. 4th DCA 1978). Contra, State v. Reese, 359 So. 2d 33 (Fla. 4th DCA 1978). A court order entered before expiration of the speedy trial time is required to extend or toll the speedy trial periods. Ru-biera v. Dade County ex rel. Benitez, 305 So. 2d 161,163 (Fla.1974); State v. Wise, 336 So. 2d 3 (Fla.…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State of Fla. ex rel. Isaac Don Butler & Gerald Nickles v. Honorable Ralph O. Cullen, 253 So. 2d 861 (Fla. 1971)
- Ozzie Joseph Negron and Teresa Negron v. State, 306 So. 2d 104 (Fla. 1974)
- Coppola v. State, 318 So. 2d 181 (Fla. 2d DCA 1975)
- Coppola v. State, 337 So. 2d 779 (Fla. 1976)
- Ocean Mile Ltd. v. Walker, 334 So. 2d 56 (Fla. 1st DCA 1976)
- State of Fla. ex rel. John L. Gadson v. Honorable Robert W. Tyson, Jr., 334 So. 2d 56 (Fla. 4th DCA 1976)