STATE OF FLORIDA, APPELLANT,
v.
JOHN J. RHEINSMITH, JR., APPELLEE
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A speedy trial demand filed in a prior prosecution applies to subsequent charges based on the same conduct, and a continuance granted for exceptional circumstances extends the speedy trial period.
[1] A demand for speedy trial filed in a first prosecution applies to a subsequent prosecution for the same conduct without the demand being refiled.
[2] The state cannot avoid the intent and effect of a speedy trial rule by entering a nolle prosequi and then filing a new information based on the same conduct.
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Join FLexlaw to unlock all legal intelligenceDefendant was charged, filed a speedy trial demand, and the state nolle prossed the charges after a continuance was denied. New charges were filed, an…
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PER CURIAM.
The State of Florida appeals the discharge of John J. Rheinsmith, Jr. pursuant to his demand for speedy trial.
We reverse upon the following facts:
On June 15, 1977, Rheinsmith was charged with grand larceny. Thereafter a trial date was set by court order. It was reset for September 30 by stipulation of counsel. On September 28,1977, defendant filed a demand for speedy trial. On the day of trial the prosecutor moved for a continuance. The motion was denied and the state voluntarily nolle prossed the charges.
Two weeks later new charges of grand larceny were filed against Rheinsmith based upon the same conduct giving rise to the June 15 charges. Trial was set for November 17, 1977. On that date the state filed a written motion for continuance alleging that an essential witness would be out of the United States until after Thanksgiving. The motion was granted. On December 7, 1977 Rheinsmith moved for discharge based upon the speedy trial demand filed in the first criminal action. After a hearing the court ordered appellant discharged.
Rheinsmith urges that the demand for speedy trial filed in the first prosecution should also apply to the second case without the demand being refiled. We agree with this assertion. The intent and effect of the speedy trial rule cannot be avoided by the state through the device of entering a nolle prosse to a criminal charge and then filing a new information based on the same con duct. See Fla.R.Crim.P. 3.191(b)(2). The post-demand speedy trial period of 60 days ran to November 28. Before that date the state had, on November 17, filed a motion for continuance based upon the nonavailability of a witness whose presence was uniquely necessary for the trial. A continuance granted upon such an exceptional circumstance extends the speedy trial period. See Fla.R.Crim.P. 3.191(f)(1); State v. Felton, 348 So. 2d 1214 (Fla. 4th DCA 1977).
The court’s order discharging Rheinsmith is therefore reversed and the cause remanded for further proceedings consistent with this opinion.
GRIMES, C. J., and HOBSON and SCHEB, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Routly v. State, 440 So. 2d 1257 (Fla. 1983)…xtension of the speedy trial rule is clear. Fla.R. Crim.P. 3.191(f); Dedmon v. State, 400 So. 2d 1042, 1045 (Fla. 1st DCA 1981); Foster v. State, 380 So. 2d 1081, 1082-83 (Fla. 3d DCA), review denied, 388 So. 2d 1113 (Fla.1980); State v. Rheinsmith, 362 So. 2d 698, 699 (Fla. 2d DCA 1978); State v. Wolfe, 271 So. 2d 203, 204 (Fla. 4th DCA 1972). Further, the trial court’s determination of exceptional circumstances is a matter of discretion based on the facts presented below. Taiton v. State, 362 So. 2d 686, 68…
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State v. Agee, 588 So. 2d 600 (Fla. 1st DCA 1991)…ndants will be brought to trial within the time periods prescribed by the rule. If prosecutors were permitted to unilaterally suspend the prescribed periods simply by use of the nolle prosequi, the rule would be meaningless. See State v. Rheinsmith, 362 So. 2d 698 (Fla. 2d DCA 1978). Nevertheless, the state advances several arguments in support of its contention that the trial court erred in discharging the appellee. First, the state argues that 3.191(b)(1) deprives the appellee of any right to discharge. It…
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Fyman v. State, 450 So. 2d 1250 (Fla. 2d DCA 1984)…y trial rule, the time within which a person must be tried cannot be extended by the state entering a nolle prosequi to a crime charged and then prosecuting new or different charges based on the same conduct or criminal episode. State v. Rheinsmith, 362 So. 2d 698 (Fla. 2d DCA 1978); Fla.R.Crim.P. 3.191(h)(2). Because appellant was first arrested as a result of the same conduct which gave rise to the charges in the second information, the speedy trial period commenced on April 6, 1981, the date of that first…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Felton, 348 So. 2d 1214 (Fla. 4th DCA 1977)