CHAPTER 6

SPEEDY TRIAL

§6:1 The Constitutional Right

§6:1(a) Statutes of Limitation

§6:2 The Statutory Right

§6:2(a) When Is a Defendant in Custody

§6:2(b) Speedy Trial Upon Demand

§6:2(c) Moving for Discharge Under the Rule

§6:2(c)(1) A Court-Ordered Extension of Time That Has Not Expired

§6:2(c)(2) The Failure to Commence Trial Is Attributable to Any Defendant or Counsel for Any Defendant

§6:2(c)(2)(A) The Defendant Was Not Continuously Available for Trial

§6:2(c)(2)(B) Defendant’s Speedy Trial Demand Under Fla. R. Crim. P. 3.191(b) and (g) Is Invalid

§6:2(d) Timing of Motion for and Orders Granting Extension of Speedy Trial Period

§6:2(e) Conflict Between Right to Speedy Trial and Right to Discovery

§6:2(f) The Effect of Discharge

§6:2(g) The Effect of Mistrials, Appeals, etc.

§6:2(h) The Effect of Nolle Prosequi

§6:1 The Constitutional RightThe United States Constitution, at Amendment VI, provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial ... .

Similarly, the Florida Constitution, at Article I §16, provides:

In all criminal prosecutions the accused shall ... have the right ... to have a speedy ... trial ....

See generally R.J.A. v. Foster, 603 So. 2d 1167 (Fla. 1992); State ex rel. Maines v. Baker, 254 So. 2d 217 (Fla. 1971).

The language of the Florida Constitution being all but identical to its federal counterpart, the two constitutional guarantees are to be given the same construction. Barker v. Wingo, 407 U.S. 514 (1972), is the starting point for that construction. Barker and a co-defendant were arrested in July of 1958 for killing an elderly couple and were indicted in September of that year. The prosecution proceeded first against the co-defendant, in hopes of convicting him and obtaining his testimony against Barker. This litigation, however, stretched out till December of 1962. In the interim, Barker was admitted to bail and his case repeatedly continued, usually (but not invariably) without a defense objection. Barker was tried and convicted in October of 1963. At trial and on appeal, he claimed a violation of his constitutional right to speedy trial.

The U.S. Supreme Court affirmed Barker’s conviction. In doing so, it gave content to the Sixth Amendment speedy trial guarantee. That guarantee, said the Court, turned on the application of four factors: (1) the length of the delay; (2) the reason for the delay; (3) whether and when the defendant asserted his speedy trial right; and (4) whether the defendant was prejudiced by the delay. Barker had made no effort to assert his speedy trial right until the eleventh hour, hoping that any delay would work to his advantage. That, of course, was a reasonable tactical choice; with the passage of time, witnesses may forget or even disappear. But having made such a tactical decision, Barker was stuck with the consequences. He could not complain that his own choice violated his right to speedy trial. Additionally, the Court found no prejudice to Barker resulting from the delay.

The Supreme Court had occasion to revisit the Barker factors in Doggett v. United States, 505 U.S. 647 (1992). Doggett was indicted in February of 1980 on federal drug charges. He spent about 2 1/2 years wandering through Panama and Colombia, during some but not all of which time his whereabouts were known to U.S. law enforcement authorities. The pursuit of Doggett was less than dogged. In September of 1982, he re-entered the United States and settled in Virginia. Over the course of the ensuing years, he married, earned a college degree, found a steady job as a computer operations manager, lived openly under his own name, and abided the law. In 1988, the U.S. Marshal’s Service was running routine credit checks on people subject to outstanding warrants and came upon Doggett’s name and current address. Six years after his return to the United States, and 8 1/2 years after his indictment, Doggett was arrested. Id. at 649.

There was general agreement that the first three Barker factors weighed in Doggett’s favor. The length of the delay in bringing the case to trial was exceptional; the delay was attributable exclusively to the government’s sloth in pursuing Doggett; and any failure on Doggett’s part to assert his speedy trial rights was explained by the simple fact that he was unaware that he had been indicted, and of his status as a fugitive. The real issue in the case was whether the delay had prejudiced the defense. The court of appeal, for example, took the position “that Doggett could prevail only by proving ‘actual prejudice’” and “that Barker’s first three factors did not weigh so heavily against the Government as to make proof of specific prejudice unnecessary.” Id. at 651. The Supreme Court recognized the difficulty of the inquiry:

[T]he Government claims Doggett has failed to make any affirmative showing that the delay weakened his ability to raise specific defenses, elicit specific testimony, or produce specific items of evidence. Though Doggett did indeed come up short in this respect, the Government’s argument takes it only so far: consideration of prejudice is not limited to the specifically demonstrable, and, as it concedes ... affirmative proof of particularized prejudice is not essential to every speedy trial claim ... . Barker explicitly recognized that impairment of one’s defense is the most difficult form of speedy trial prejudice to prove because time’s erosion of exculpatory evidence and testimony “can rarely be shown.” ... And though time can tilt the case against either side, ... one cannot generally be sure which of them it has prejudiced more severely. Thus, we generally have to recognize that excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify. While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria ... it is part of the mix of relevant facts, and its importance increases with the length of the delay.

Id. at 656 (citations omitted). Where, as here, the delay in question is far in excess of the one-year threshold at which courts consider prejudice to be presumptive and where the other Barker factors argue as strongly on a defendant’s behalf as they did on behalf of Doggett, a constitutional speedy trial violation is made out.

Florida had its own version of Doggett in Madonia v. State, 648 So. 2d 260 (Fla. 5th DCA 1994). In 1989, James Madonia committed a burglary. During the commission of the crime, Madonia was shot, stabbed sixteen times, and had his throat cut. He spent the next thirty days in the hospital, no doubt cursing his luck. But his luck had already taken a turn for the better. No one showed up to arrest him; not during his thirty-day stint in the hospital, and not for the next three years.

During that three-year period, Madonia did nothing to evade the authorities. He lived, as the court of appeal would later observe, “openly and under his own name with his son and his wife[,] ... never left the country[,] and apparently ... received social security checks” at his address. His arrest was itself serendipitous; he was the subject of a routine traffic stop, during the course of which the outstanding warrant (the existence of which he was unaware) turned up. Id. at 261. Citing Barker and Doggett, Madonia claimed violation of his constitutional right to speedy trial.

Looking to the four Barker factors, the appellate court agreed. Certainly the length of the delay was uncommon, and equally certainly it was the state and not the defendant that was responsible for the lengthy delay. True, Madonia had not clamored for a speedy trial, but that was because he was blissfully unaware of the charges against him. And on the key question of prejudice, the court found that “a delay of more than three years is

sufficient time to make the delay ‘presumptively prejudicial.’” Madonia, 648 So. 2d at 261. See also State v. Jenkins, 899 So.2d 1238 (Fla. 4th DCA 2005); Seymour v. State, 738 So. 2d 984 (Fla. 2d DCA 1999).

§6:1(a) Statutes of LimitationA variation on the same theme arose in State v. Mack, 637 So. 2d 18 (Fla. 4th DCA 1994). The prosecution

filed, on December 3, 1984, an information charging the defendant with the commission of crimes between April and June 1982. At the time the information was filed, a capias issued, but the defendant was not served with it until January 29, 1993. Under then-existing statutes of limitation, the state was obliged to commence prosecution within three years as to certain of the charged offenses, and within five years as to others. Fla. Stat. §775.15(5)(b) (2000), provides, in pertinent part:

A prosecution ... is commenced when either an indictment or information is filed, provided the capias, summons or other process issued on such indictment or information is executed without unreasonable delay. In determining what is reasonable, inability to locate the defendant after diligent search or the defendant’s absence from the state shall be considered.

Although the prosecution did make some efforts to locate Ms. Mack in 1985, it was not until 1993 that an investigator from the state attorney’s office took the trouble to conduct a driver’s license check. He found that Ms. Mack had married and taken her husband’s name in November of 1985, and that her whereabouts were no mystery. Id. at 19.

Based on the foregoing, the appellate court found that the efforts made by the state to serve the defendant with process were less than diligent, and the resulting delay longer than reasonable. The court provided a laundry-list of sources that the prosecution should be expected to consult in order to conduct a diligent search, such as telephone listings, driver’s license records, property tax records, voter’s registration records, marriage license records, and the like. Id. at 19-20. Where, as here, the efforts made by the state to serve the defendant with process were insufficiently diligent, the prosecution did not commence seasonably; and the defendant was therefore entitled to dismissal, not on speedy trial grounds, but on the basis of the statute of limitations. See also Norris v. State, 784 So. 2d 1188 (Fla. 2d DCA 2001); Lucas v. State, 718 So. 2d 905 (Fla. 3d DCA 1998); Williams v. State, 707 So. 2d 897 (Fla. 2d DCA 1998); Newman v. State, 707 So. 2d 811 (Fla. 1st DCA 1998); Neal v. State, 697 So. 2d 903 (Fla. 2d DCA 1997); King v. State, 687 So. 2d 917 (Fla. 5th DCA 1997); State v. Watkins, 685 So. 2d 1322 (Fla. 2d DCA 1996); Brown v. State, 674 So. 2d 738 (Fla. 2d DCA 1995); McNeil v. State, 673 So. 2d 125 (Fla. 3d DCA 1996); Coleman v. State, 655 So. 2d 1239 (Fla. 1st DCA 1995).

Compare State v. Martinez, 790 So. 2d 520 (Fla. 2d DCA 2001). Martinez was arrested in November of 1990. The office of the public defender was appointed to represent him and duly filed on his behalf a written plea of not guilty, a demand for jury trial, and a notice of discovery. Martinez was released on his own recognizance in December and then was seen no more. A capias issued for him in February of 1991, but he was not arrested on it till June of 2000. Id. at 521.

Martinez sought dismissal, claiming that he had resided continuously in Florida from the time the capias issued till the time of his arrest, and that the State had simply failed to make reasonable and diligent efforts to serve the capias upon him. This argument the appellate court quite properly concluded was beside the point. Martinez was represented by counsel at the time that the information against him was filed, and Martinez’s counsel responded to that information. “Martinez, either personally or through his counsel, knew that an information had been filed against him and that his prosecution was going forward.” Id. at 522. That being the case, “prosecution commenced no later than the date of [Martinez’s] arraignment.” Id. See also State v. McCubbins, 817 So. 2d 966 (Fla. 2d DCA 2002).

Virtually all speedy trial litigation in Florida is brought under Rule 3.191 of the Florida Rules of Criminal Procedure. It is to that rule that we must now turn.

§6:2 The Statutory RightApart from his constitutional speedy trial rights, Fla. R. Crim. P. 3.191 provides a defendant with statutory

guarantees of certain speedy trial rights and procedures. The gravamen of the rule is that felonies should be tried within 175 days of the defendant’s being taken into custody, or within 60 days of his demand for trial, whichever is sooner; and that misdemeanors should be tried within 90 days of the defendant’s being taken into custody, or within 60 days of his demand for trial, whichever is sooner. Fla. R. Crim. P. 3.191(a) and (b).

§6:2(a) When Is a Defendant in Custody?

Rule 3.191(d) provides very succinctly that, “a person is taken into custody ... when the person is arrested as a result of the conduct or criminal episode that gave rise to the crime charged, or ... when the person is served with a notice to appear in lieu of physical arrest.” The speedy trial time periods – 175 days in the case of felonies, 90 days for misdemeanors – “shall commence when [the defendant] is taken into custody as defined under subdivision (d),” Fla. R. Crim. P. 3.191(a). See Reed v. State, 649 So.227 (Fla. 1995) (defendant in custody when “arrested for the conduct or criminal episode that gave rise to” the charges); State v. Hurley, 760 So. 2d 1127 (Fla. 4th DCA 2000).

The defendant in Crain v. State, 302 So. 2d 433 (Fla. 2d DCA 1974) was arrested at the scene of a traffic accident on June 3, 1973. Although a substance suspected to be marijuana was found in his car, he was charged only with the traffic offense. The following month the prosecution was able to confirm that the suspect substance was in fact marijuana, for the possession of which Crain was charged by information. He was arrested on that information on August 21st.

More than 1801 days after his initial arrest on June 3rd, but less than 180 days after his re-arrest on the drug charge, Crain moved to dismiss that charge on statutory speedy trial grounds. The court of appeal held that the motion should have been granted. The marijuana-related arrest derived from the same “conduct or criminal episode,” as the initial traffic arrest. See Fla. R. Crim. P. 3.191(n). Nor did the prosecution’s tardiness in testing the marijuana, or in arresting Crain once he had been charged for the marijuana, give rise to exceptional circumstances so as to justify an extension of the statutory speedy trial period. See Fla. R. Crim. P. 3.191(l). Crain had been taken into custody on June 3rd, and the statutory speedy trial period was computed from that date for all purposes. The defendant in Shearin v. State, 755 So. 2d 800 (Fla. 2d DCA 2000), was arrested in May of 1997 for prostitution and resisting arrest. A search incident to her arrest revealed “several peach-colored pills” in her wallet which were sent to the FDLE lab for analysis. Id. at 800. Shearin’s pending charges were resolved by plea in June. By the end of the year, however, the lab had determined that the pills found in her wallet were contraband, and a warrant was issued for her arrest in mid-December. Id. at 801. Formal charges were filed in March of the following year, at which time Shearin moved to dismiss on speedy trial grounds. The appellate court, however, determined that Shearin was arrested on the drug charges for speedy trial purposes in December, when the lab analysis triggered the issuance of the arrest warrant, not in the preceding May.

Compare State ex rel. Dean v. Booth, 349 So. 2d 806 (Fla. 2d DCA 1977). There, police arrived at the scene of a shooting on January 6th to find a victim, a witness pointing the finger of guilt at Dean, and a gun in Dean’s possession. Dean was locked in a police car and driven to the station house for questioning. He was informed of his Miranda rights, and he made a statement. He was not fingerprinted nor placed in a cell, and he was never formally told that he was under arrest. He was then released, but was indicted on March 14th.

Taking the position that the speedy trial period ran from January 6th, Dean moved for discharge on July 6th. The court of appeal, however, found that Dean had not been in custody on January 6th:

A short protective or investigative custody is often advisable where, as in the instant case, a person is a suspect but the police do not believe they have enough evidence to arrest him... . To construe the speedy trial rule to mean that the time starts running every time the police take a suspect to the station for questioning could have a deleterious effect because the police might then feel compelled to make an arrest on less than sufficient evidence in order to activate the wheels of the prosecutorial process before the time runs out.

Id. at 807.This reasoning is not immune from criticism. It seems anomalous to say that Dean was not in custody because

he was in “protective or investigative custody.” And the argument that application of the speedy trial rule could have “a deleterious effect” on police policy is an argument that should be addressed to the legislature, not the courts. If Dean was in police custody on January 6th, he was entitled to discharge by operation of the statutory speedy trial rule. To suggest that he was not in custody simply because he was never told the magic words, “you’re under arrest,” or because the custody was “protective or investigative” in nature, is to exsanguinate the language of the statute. Dean was first locked in a police cruiser, then taken to the police station. There is no suggestion that he went voluntarily, nor that he could have refused to go. It is far from clear that this was not an arrest. And if it was an arrest, Dean was in custody, and the speedy trial clock began to run. It has been conceded that, “A formal arrest, complete with fingerprinting and formal charges, is not required to start the time running under” the statutory speedy trial rule. Bannister v. State, 382 So. 2d 77 (Fla. 5th DCA 1980) (citing Deloach v. State, 338 So. 2d 1141 (Fla. 1st DCA 1976); State v. B., 360 So. 2d 162 (Fla. 1st DCA 1978)).

The Dean case was cited with approval, however, in State v. Christian, 442 So. 2d 988 (Fla. 2d DCA 1983). On June 29th, detectives asked Christian to accompany them to the police station for questioning about a

homicide. Although the inference is that he could have declined the invitation, Christian went with the officers. He was handcuffed during the ride to the station house. Once there, he was read his Miranda rights, waived them, and gave a statement of about 15 minutes duration. The detectives then went to discuss with their supervisor whether or not formally to arrest Christian. It is conceded that during this brief period he was not free to leave. In the event, they decided not to arrest him; but another detective, pursuing an unrelated robbery investigation and learning of Christian’s presence at the station house, effected an arrest. “There was no suggestion that the robbery arrest ... was a subterfuge designed to hold [Christian] for the homicide.” Id. at 989.

The robbery charge was dismissed on September 17th; but on December 29th, Christian was arrested for the homicide about which he had been questioned on June 29th. He moved for discharge on statutory speedy trial grounds.

Citing Dean, the Christian court found that, “something more than an investigatory detention is required” to trigger the speedy trial statute. “A person may be deemed to be ‘in custody’ for purposes of his Miranda rights yet not be ‘in custody’ for purposes of the application of the speedy trial rule.” Id. at 989 (citing Dean, 349 So. 2d at 806). Because, in the court’s view, the custody to which Christian was subjected was merely investigatory, discharge on speedy trial grounds was inappropriate. See also State v. Lail, 687 So. 2d 873 (Fla. 2d DCA 1997) (defendant not in custody for speedy trial purposes even though “he was placed inside of a holding cell, handcuffed, and ... the box marked ‘post-arrest’ was checked on his Miranda rights waiver form”).

Some police officers are under the misimpression that if an arrested person is released from custody he has been “unarrested” for speedy trial and perhaps other purposes. There is, of course, no such thing as an “unarrest.” Williams v. State, 757 So. 2d 597 (Fla. 5th DCA 2000).

A special rule governs defendants who are incarcerated in federal custody or in the jails or prisons of another state. See, e.g., Holmes v. State, 653 So. 2d 464 (Fla. 1st DCA 1995). For such a defendant, the 175-day or 90-day speedy trial period cannot begin to run until he, “returns or is returned to the jurisdiction of the court within which the Florida charge is pending and until written notice of the person’s return is filed with the court and served on the prosecutor.” Fla. R. Crim. P. 3.191(e). Note that a detainer placed by one county within Florida for a prisoner held by another county within Florida is not the equivalent of an arrest and is not considered custody for purposes of starting the speedy trial clock. Adams v. State, 780 So. 2d 955 (Fla. 4th DCA 2001).

Note, too, that when misdemeanors are consolidated with felonies they are governed by the speedy trial period applicable to felonies; but courts must be vigilant to insure that this rule is not used to revive a misdemeanor otherwise subject to speedy trial discharge. Alvarez v. State, 791 So. 2d 574 (Fla. 4th DCA 2001).

§6:2(b) Speedy Trial Upon DemandWholly apart from the 175-day and 90-day speedy trial periods applicable in every case and commencing

with custody, a defendant (again, unless incarcerated outside the jurisdiction of Florida courts) may demand trial within 60 days, pursuant to Fla. R. Crim. P. 3.191(b). Within five days of the filing of such a demand, the trial court is to hold a “calendar call,” i.e. a hearing, with notice to all parties, to acknowledge the filing of the speedy trial demand and to set the case for trial in not less than five, and not more than 45 days. See Holmes v. State, 731 So. 2d 92 (Fla. 1st DCA 1999). Failure of the trial court to hold such a “calendar call,” however, has no effect on the rights and time periods triggered by the speedy trial demand. Fla. R. Crim. P. 3.191(b)(1)-(3).

The making of a speedy trial demand is serious business, and should only be undertaken in good faith and after mature reflection. See, e.g., State v. Gilliam, 884 So.2d 128 (Fla. 2d DCA 2004). The decision to make a speedy trial demand is, like the decision whether or not the defendant should testify, or the decision whether or not the defendant should accept an offered plea, one as to which the attorney can advise, but the client must consent. The language of Fla. R. Crim. P. 3.191(g) dictates that no demand be filed “unless the accused has a bona fide desire to obtain a trial sooner than otherwise might be provided.” See State v. Reaves, 609 So. 2d 701 (Fla. 4th DCA 1992) (emphasis added). Responsible defense counsel will try to have some documentation in his file reflecting the advice he has given, and the instructions he has received from, his client before filing a demand pursuant to subpart (b). Appellate courts have not hesitated to excoriate defense counsel who utilize the provisions of Rule 3.191 for any tactical purpose other than to insure an early trial date. See, e.g., State v. Velazquez, 802 So. 2d 426 (Fla. 3d DCA 2001).

A demand for speedy trial constitutes notice by the defendant to the court that he will be trial ready in five days. Such a demand is said to bind both the prosecution and the defense; by which it is meant that, for example, the defendant may not continue to take discovery after he has filed his speedy trial demand. Such a demand may not be withdrawn by the defendant without court order.

The defendant in Landry v. State, 666 So. 2d 121 (Fla. 1995), was charged with capital murder and other crimes. Two days later, his attorney filed a speedy trial demand. At a hearing set on that demand, the trial court

inquired of Landry if he understood the consequences of his attorney’s actions, i.e. that he would be denied the benefits of discovery. Landry indicated that he agreed with his lawyer’s decision to forego discovery in favor of a speedy trial. At the conclusion of the hearing, the trial court entered an order purporting to “deny” the speedy trial demand.

More than fifty days later, defense counsel made what would be the first of a series of motions for discharge, alleging that a speedy trial demand had been duly made and that Landry had been continuously available for trial since the time of the demand. The trial judge denied the motion, citing its earlier “denial” of the speedy trial demand.

On appeal from the ensuing convictions, the Supreme Court reluctantly concluded that Landry was entitled to relief because “the procedures set forth in Rule 3.191 were virtually ignored in this case.” Id. at 125. Fla. R. Crim. P. 3.191 makes no provision for the “denial” of a speedy trial demand. When Landry’s demand was first filed, the prosecution should have moved to strike under subpart (g) of the rule, on the grounds that the defense “ha[d] not diligently investigated the case or ... is not timely prepared for trial.” Had such a prosecution motion been heard and granted, the court would have had a basis to deny the defense motions for discharge as premised upon an invalid, and stricken, speedy trial demand. Alternatively, in the absence of a prosecution motion to strike, the trial court could have achieved the same result sua sponte under subpart (j) of the rule. Because both the prosecution and the trial court ignored the procedural provisions of the speedy trial rule, Landry reaped the benefits of the rule’s relief provisions.

In dictum, the Supreme Court gave important direction to trial courts making the determination that the Landry trial court should have made: what is the appropriate standard for determining whether to strike a speedy trial demand when the defense alleges that the demand is made for good-faith tactical reasons?

The determination of whether a speedy trial demand is valid should not involve a subjective evaluation of trial strategy or mere second-guessing by the trial court. The court must look to the record for objective evidence of whether the accused’s demand for speedy trial is valid. In objectively evaluating the validity of a speedy trial demand, the court must consider representations made by defense counsel or the accused on the record. The court must also look to the record for evidence of such things as motions filed by the defendant or ongoing investigation or trial preparation. The court must then determine whether the record activity or trial preparation reasonably affected the defendant’s readiness for trial. ...

Where a defendant chooses to forego discovery, the court may consider whether, under the circumstances present in that case, the defendant could be reasonably prepared for trial without the benefit of discovery. However, if there is no objective evidence on the record to support that determination, the mere fact that the defendant has not engaged in discovery and the trial court believes the strategy is ill-advised cannot serve as the sole basis for striking the demand as invalid.

Id. at 128. Cf. Jerrell v. State, 816 So.2d 835 (Fla. 1st DCA 2002). An information was filed against Jerrell on February 12, 2002. His counsel filed a speedy trial demand on February 15, and on the same day Jerrell was taken into custody. When the defense in due course filed a notice of expiration of speedy trial period, the prosecution moved to strike the speedy trial demand on the grounds that it was made before Jerrell was taken into custody. The court of appeal rejected this argument, finding the demand to be effective and the speedy trial period to have run.

§6:2(c) Moving for Discharge Under the RuleSecuring a discharge for violation of the defendant’s statutory speedy trial rights is no simple matter. If a

defendant charged with a felony (but who has not made a speedy trial demand under Fla. R. Crim. P. 3.191(b)) is not brought to trial within 175 days; or if a defendant charged with a misdemeanor (but who has not made a speedy trial demand under Fla. R. Crim. P. 3.191(b)) is not brought to trial within 90 days; or if a defendant who has made a speedy trial demand under Fla. R. Crim. P. 3.191(b) is not brought to trial within 50 days; then his attorney must file a Notice of Expiration of Time for Speedy Trial. Dabkowski v. State, 711 So. 2d 1219 (Fla. 5th DCA 1998) (citing Clark v. State, 698 So. 2d 1274 (Fla. 3d DCA 1997)). Such a notice may be filed any time after the expiration of the indicated time periods, and should be filed as soon thereafter as possible. But “a notice of expiration of speedy trial time filed before expiration of the period of time for trial is invalid and shall be stricken,” Fla. R. Crim. P. 3.191(h). This, of course, is viewed by many members of the defense bar as somewhat harsh. If the preliminary motion for discharge happens to hit the clerk’s desk a day early, would it be unfair to deem it as having been filed on the first day when it would be efficacious, i.e. the following day? Perhaps not; but fair or otherwise, the rule is clearly written and easily – if harshly – applied. See Sarrain v. State, 632 So. 2d 1063

(Fla. 3d DCA 1994). See also State v. Lazarre, ___ So.2d ___ (Fla. 4th DCA 2005) (Demand for speedy trial filed prior to filing of charges is a nullity).

Once the notice of expiration has been filed, and assuming it is properly before the court, the court, pursuant to Fla. R. Crim. P. 3.191(p), must conduct the hearing described in Fla. R. Crim. P. 3.191(j); and must do so within five days “from the date of the filing of a notice of expiration of speedy trial time.” See Fla. R. Crim. P. 3.191(p)(3). The hearing is simply one at which the court determines if any of four conditions has been met. If any one of the following conditions has been met, the defendant is not entitled to discharge on speedy trial grounds.

§6:2(c)(1) A Court-Ordered Extension of Time That Has Not ExpiredFla. R. Crim. P. 3.191(i) provides the court with limited authority to extend the time limits provided by the

rule. For example, the court may extend time limits, “for a period of reasonable and necessary delay resulting from proceedings including but not limited to an examination and hearing to determine the mental competency or physical ability of the defendant to stand trial, for hearings on pretrial motions, for appeals by the state, and for trial of other pending criminal charges against the accused.” Additionally, the court may extend time limits upon a finding of “exceptional circumstances.” Such exceptional circumstances, according to Fla. R. Crim. P. 3.191(l), include:

a. Unexpected illness or incapacity or other unforeseeable and unavoidable absence of a person whose testimony is uniquely necessary for a fair trial.

The defendant in Thrasher v. State, 528 So. 2d 474 (Fla. 1st DCA 1988) was caught in flagrante delicto while burgling an establishment that rejoices in the name of “Beer Haven Lounge.” Thrasher sought to assert a mens rea defense: he was hypoglycemic, and when his blood sugar level dropped as it did on the night in question, he became utterly unaware of what he was doing. Toward that end, he had planned to adduce the testimony of a fellow hypoglycemic, who would testify both to the effects of hypoglycemia in general, and to her observations of Thrasher’s erratic behavior on other occasions. Regrettably for the defense, on the very morning of trial this witness became ill and was unable to testify.

Citing Fla. R. Crim. P. 3.191(l)(1), the defense sought an order extending the speedy trial limits because of “unexpected illness” afflicting “a person whose testimony is uniquely necessary for a fair trial.” The defense application was denied. On appeal, the First District, with almost no discussion, found no abuse of discretion and affirmed. There is an inference in the appellate opinion that the witness in question was not “uniquely necessary” because a doctor would have made an even better witness as to the effects of Thrasher’s malady. See also Clark v. State, 873 So.2d 598 (Fla. 3d DCA 2004) (error to grant prosecution’s motion to extend speedy trial period because of unavailability of witness for trial where there was no showing that witness was essential); Sullivan v. State, 728 So. 2d 290 (Fla. 2d DCA 1999).

b. A showing by the prosecution that the case is “so unusual and so complex” that it would be unreasonable to expect adequate investigation and preparation within the ordinary time periods.

The defendant in Allen v. State, 275 So. 2d 238 (Fla. 1973), was arrested in June of 1971. The grand jury had been dismissed the preceding month, however, and did not reconvene until the following November, at which time Allen was indicted. In December, the defense moved for discharge on speedy trial grounds. The Florida Supreme Court, apparently sharing Hamlet’s distaste for “the law’s delay, [t]he insolence of office,” found that the unavailability of the grand jury was not the sort of exceptional circumstance that would justify extending the speedy trial period:

We can only surmise that the delayed trial date was the result of congestion in the court’s docket or a lack of preparation and diligent prosecution by the State. These conditions may have been aggravated by the fact that the grand jury did not convene until shortly before the expiration of the 180-day time period. However, the letter of Rule 3.191[l] ... encompasses and excludes the former conditions as constituting “exceptional circumstances,” and the spirit of the Rule dictates that a grand jury’s untimely convention should not serve to prevent a speedy trial. Such a circumstance is an “avoidable or foreseeable delay” within the language of that subsection. The trial court could have recalled the grand jury... . Perhaps a rescheduling of ... Grand Jury terms would serve to alleviate such a delay. [Allen] was not responsible for these delays and he should have been afforded a speedy trial.

Id. at 241. To the same effect, see Crain v. State, 302 So. 2d 433 (Fla. 2d DCA 1974); Jones v. State, 707 So. 2d 905 (Fla. 2d DCA 1998) (“the routine practice of not empaneling jurors during [the Christmas] holiday period is not an exceptional circumstance as defined in Rule 3.191(l)”).

c. A showing by the prosecution that specific important evidence is not presently available despite diligent efforts to secure it, but that it will become available at an identifiable time in the future. See, e.g., Westberry v. State, 700 So. 2d 1236 (Fla. 1st DCA 1997).

d. A showing by the prosecution or the defense of a need for a continuance for reasons that could not have been anticipated, but which will materially affect the trial.

e. A showing that a delay is necessary to accommodate a co-defendant, where severance of defendants is not the appropriate remedy.

Miner v. Westlake, 478 So. 2d 1066 (Fla. 1985), involved co-defendants charged with grand theft in a single indictment. One co-defendant moved for a continuance and waived his right to speedy trial. The prosecution then asked the trial judge to extend the speedy trial period as to the other codefendant – Westlake – because the same witnesses would be called against both defendants. Westlake moved for severance, on Bruton grounds (see Chapter 5) and also to preserve her right to a speedy trial. The circuit judge granted the continuance, extended the speedy trial time, and denied Westlake’s motion to sever. Westlake subsequently moved for discharge on speedy trial grounds, alleging that she had never waived her statutory entitlement to speedy trial and that her speedy trial period could not be extended simply to suit the convenience of the prosecution. The district court agreed with this allegation as did the Florida Supreme Court. Id. See also Nazario v. State, 700 So. 2d 154 (Fla. 3d DCA 1997); Santiago v. State, 698 So. 2d 919 (Fla. 5th DCA 1997); Machado v. State, 431 So. 2d 337 (Fla. 2d DCA 1983).

f. A showing that the defense has caused unreasonable delay.

If, on the basis of any of these factors, the court has extended time limits, and the extension has not expired, the defendant would not be entitled to discharge on speedy trial grounds. Of course, exceptional circumstances are not limited to those enumerated above. The trial court has discretion to find exceptional circumstances whenever and wherever the moving party can demonstrate that such a finding is warranted. But exceptional circumstances must be exceptional; ordinary docket congestion, for example, will never qualify. See, e.g., State v. H, 295 So. 2d 698 (Fla. 1st DCA 1974).2

§6:2(c)(2) The Failure to Commence Trial Is Attributable to Any Defendant or Counsel for Any Defendant

§6:2(c)(2)(A) The Defendant Was Not Continuously Available for TrialNo defendant is entitled to discharge unless he has been continuously available for trial during the applicable

time period – 175 days, 90 days, or 60 days, as the case may be. If a defendant moves for discharge on speedy trial grounds, and the prosecution “presents any evidence tending to show [the defendant’s] nonavailability, the [defendant] must establish, by competent proof, availability during the term.” Fla. R. Crim. P. 3.191(k).

A defendant is unavailable in either of two circumstances. A defendant who has been duly noticed to appear before the court for any hearing or proceeding, but who fails to appear (in person or through his attorney), is unavailable. The defendant in Gonzalez v. State, 536 So. 2d 1128 (Fla. 1st DCA 1988) failed to appear for a pretrial conference. The court of appeal, however, found the order setting the pretrial conference to be unclear about whether the defendant’s presence was required. In these circumstances, the court was unwilling to hold that the defendant had rendered himself unavailable for trial for purposes of the speedy trial rule.

Generally, the defendant must have been given actual notice of his obligation to appear, or his failure to appear will not be deemed to render him unavailable. Thus, for example, if notice of a hearing date was sent to an incorrect address (for no reason attributable to the defendant), the defendant’s ensuing failure to appear will not work against his speedy trial right. See, e.g., Dixon v. State, ___ So.2d ___ (Fla. 3d DCA 2005); Clinton v. State, 451 So. 2d 893 (Fla. 3d DCA 1984); Kelly v. Goldstein, 649 So. 2d 921 (Fla. 4th DCA 1995). Notice to defense counsel of record, however, is the equivalent of actual notice to the defendant. See Sherrod v. Franza, 427 So. 2d 161 (Fla. 1983).

The defendant in Loftis v. State, 682 So. 2d 632 (Fla. 5th DCA 1996), was arrested on September 9, 1993, for drunk driving. He falsely identified himself as “John Shaefer” and was released on his own recognizance. His case proceeded in the ordinary manner and would have been tried sometime in late November or early December, but on October 22 the prosecution learned Loftis’ true name and identity and promptly nolle prossed the case against “John Shaefer.” Not until March 23 of the following year did the state get around to re-filing the charges under the name of Loftis. Defense counsel moved to dismiss the case against Loftis, claiming that the prosecution failed to

bring the defendant to trial within ninety days. The county court denied the motion, attributing the delay to the defendant’s use of a false name.

The Fifth District reversed and dismissed for speedy trial violation. By October 22, when it dismissed the case against “Shaefer”:

the state knew that Loftis had provided false information. The state had at least three options after becoming aware of Loftis’ impersonation. First, the state, after entering the nolle prosequi, could have refiled the charges within [the time remaining for speedy trial in the “Shaefer” case] ... . Second, the state could have amended the traffic citation to show that Shaefer was Loftis’ alias and continued with the trial date already set... . Finally, the state could have sought an extension of time for due cause ... . Instead, the state waited 195 days after the arrest to refile the charges using Loftis’ correct name. Any delay in filing charges against Loftis rests squarely with the state.

Id. at 634.It sometimes happens that a defendant is wanted for trial in one Florida county while held in custody in

another Florida county. That, in any event, is what happened in Pilgrim v. Swanson, 558 So. 2d 176 (Fla. 2d DCA 1990). The Pilgrim court resolved the problem by reference to a factual distinction:

On the one hand, if a defendant is charged in one county but incarcerated in another without the knowledge of the first county, no knowledge is imputed to the first county. Therefore, the defendant is considered “unavailable” for trial in the first county... .

On the other hand, if the charging county has knowledge that the defendant is incarcerated in another county, the defendant is not considered “unavailable” for trial in the charging county.

Id. at 176-77. See also State v. Antonietti, 558 So. 2d 192 (Fla. 4th DCA 1990).The second circumstance in which a defendant will be deemed unavailable for speedy trial purposes is that in

which the defense “is not ready for trial on the date trial is scheduled.” Fla. R. Crim. P. 3.191(k). Obviously, this does not require continuous trial readiness from the moment of arraignment. Typically, a case will be set for trial some weeks after arraignment; the actual trial setting may depend in part on the complexity of the case, the level of docket congestion generally, and like factors. When the case is called up for trial, the defendant who, in good faith, announces “ready for trial” keeps his speedy trial clock ticking – at least until the next time the case is called up for trial. The defendant who must move for a continuance is, as a matter of tautology, unavailable for trial and must take the consequences. State v. Gibson, 783 So. 2d 1155 (Fla. 5th DCA 2001). Of course, once that defendant becomes trial ready, he may file a speedy trial demand under Fla. R. Crim. P. 3.191(b), and start the 60-day clock ticking.

§6:2(c)(2)(B) Defendant’s Speedy Trial Demand Under Fla. R. Crim. P. 3.191(b) and (g) Is Invalid

In the event that a pending motion for discharge is denied because failure to commence trial is attributable to the defense; or because the defendant was unavailable for trial; or because defendant’s speedy trial demand was invalid; then the court, in denying the motion, shall nevertheless set trial within 90 days. Fla. R. Crim. P. 3.191(j).

As previously noted, the statutory speedy trial rule prior to 1985 afforded a defendant an absolute right to discharge after 180 days. There was no grace period during which the prosecution, having been put on notice that the speedy trial time was about to expire, could rush the case to trial. As presently constituted, the Rule affords the prosecution a “window” after 175 days have run. At the conclusion of that time, and only at the conclusion of that time, the defendant may seek discharge. A hearing on his application should be held within five days, although apparently no consequences attach to the failure to hold such a hearing provided the defendant is tried within 15 days of his application for discharge. Climpson v. State, 528 So. 2d 1296 (Fla. 1st DCA 1988). Assuming the hearing is held, the defendant must then be tried within ten days of this hearing (i.e. not more than 15 days after his application for discharge,3 which in turn was made not less than 175 days after his arrest) or be forever discharged. The mere passage of time, be it 175 days, 190 days, or longer, is not enough to entitle a defendant to a speedy trial discharge. The 15-day grace period does not commence until the prosecution and the court are placed on notice that a speedy trial discharge is sought; and no speedy trial discharge can be had until the 15-day grace period expires. Zabrani v. Cowart, 502 So. 2d 1257 (Fla. 3d DCA 1986).

If the court finds that trial did not commence within the time period provided and that the failure to bring the case to trial during the applicable time period is not excused by any of the four factors enumerated in Fla. R. Crim. P. 3.191(j), then the defendant’s notice of expiration is well taken. Regrettably for the defendant, however,

he is not entitled to discharge – not just yet. The court – having determined that defendant’s notice of expiration was filed not too soon; having, within five days of the defendant’s filing his notice, convened a hearing to consider the requirements of subpart Fla. R. Crim. P. 3.191(j); and having determined that the notice is well-taken, none of the four factors enumerated in subpart Fla. R. Crim. P. 3.191(j) being applicable – must now order that the defendant be brought to trial within ten days. If the defendant, through no fault of his own, is not brought to trial within this ten-day period, he is entitled to be discharged forever. Fla. R. Crim. P. 3.191(p)(3). The grant of a motion for discharge:

shall operate to bar prosecution of the crime charged and of all other crimes on which trial has not commenced nor conviction obtained nor adjudication withheld and that were or might have been charged as a result of the same conduct or criminal episode as a lesser degree or lesser included offense.

Fla. R. Crim. P. 3.191(n).To prevent discharge, the prosecution need only bring the defendant to trial. For this purpose, trial is deemed

to commence when the venire is sworn for voir dire in the defendant’s case. Fla. R. Crim. P. 3.191(c); Moore v. State, 368 So. 2d 1291 (Fla. 1980); State v. Vukojevich, 392 So. 2d 297 (Fla. 2d DCA 1981). But cf. McDermott v. State, 383 So. 2d 712 (Fla. 3d DCA 1980) (where jury is voir dired and sworn simply for the purpose of preventing discharge, and trial is then recessed for a lengthy period, discharge may be appropriate, particularly when defendant can show prejudice from this procedure).

§6:2(d) Timing of Motion for and Orders Granting Extension of Speedy Trial PeriodThe Florida Supreme Court has held that an extension of the speedy trial period on grounds of exceptional

circumstances need not be for a specified period of time, but may be for “an indefinite but reasonable time.” Ferris v. State, 475 So. 2d 201 (Fla. 1985).

An extension for exceptional circumstances may be entered even after the 175-day period has passed, and even after the defendant has given notice of the expiration of the initial speedy trial time period. In Brown v. State, 715 So. 2d 241 (Fla. 1998), the lead prosecutor was obliged to undergo emergency surgery. The emergency arose during the window of recapture following the 175-day period and the filing by the defendant of notice of expiration. Because the surgery would incapacitate the prosecutor for at least two weeks, the trial court reset the case to a date outside the recapture window. Id. at 242. This procedure the Supreme Court quite properly approved, noting that the rule makes no distinction between exceptional circumstances arising during the initial 175-day period and exceptional circumstances arising during the 15 days thereafter. But cf. Pezzo v. State, ___ So.2d ___ (Fla. 1st DCA 2005) (Prosecution may not amend the information after speedy trial time expires in order to circumvent effect of speedy trial rule); State v. Clifton, ___ So.2d ___ (Fla. 5th DCA 2005) (Same).

All counsel should be aware of the opinion of the Third District in Rivas v. Oppenborn, 605 So. 2d 516 (Fla. 3d DCA 1992). In Rivas, the circuit judge set trial on a date past the expiration of the speedy trial period. Defense counsel wisely “fail[ed] to object to the setting of the trial date” and, at an appropriate time, moved for discharge. The appellate court treated it as settled law that “silence of the defendant or defense counsel at the proceeding wherein defendant’s trial date is set beyond the speedy trial period is not an effective waiver” of the right to speedy trial. Id. (citing State v. Swint, 464 So. 2d 242 (Fla. 2d DCA 1985)). Although it would clearly be improper for defense counsel to mislead the court as to the date on which the speedy trial period will expire, the defense lawyer is under no obligation to volunteer information, or to bring to the court’s attention that trial has been set beyond the speedy trial period – if the court does not inquire of him. The warning Shakespeare’s Richard III gave himself – “Dive, thoughts, down to my soul” – applies here. As for the prosecutor, his is the duty of constant vigilance. If there is any doubt whether trial has been set beyond the speedy trial period, he cannot leave the courtroom until that doubt has been resolved and the record reflects that the doubt has been resolved. See also State v. Salzero, 714 So. 2d 445, 448 (Fla. 1998).

Rivas was called into question by Judge Cope in his concurring opinion in State v. Thomas, 659 So. 2d 1322, 1323-4 (Fla. 3d DCA 1995) (“This is a classic ‘gotcha’ litigation tactic”). See also State v. Velazquez, 802 So. 2d 426 (Fla. 3rd DCA 2001).

§6:2(e) Conflict Between Right to Speedy Trial and Right to DiscoveryIn late 1976, financial shortfalls in Monroe County made it all but impossible for the public defender to get

deposition transcripts on a timely basis. State ex rel. McCrimmon v. Lester, 354 So. 2d 381, 382 (Fla. 1977). Assistant public defenders and their clients were faced with a choice between Scylla and Charybdis: they could preserve their speedy trial rights by announcing they were ready for trial, but to do so they would have to waive their rights to discovery (because of the lack of transcripts) and thus compromise their rights to effective

assistance of counsel. Conversely, they could seek trial continuances in order to obtain deposition transcripts – and sacrifice their speedy trial rights in the process.

The Florida Supreme Court did not find this dilemma troubling. In the Court’s view, you pay your money and you take your choice. Those who want copies of deposition transcripts, so that defense counsel can be properly prepared for trial, may have to make certain sacrifices; among the things sacrificed may be the right to a speedy trial. “[E]ven if [criminal defendants] may be forced to relinquish a 90- or 180-day automatic discharge by insisting on ... discovery, they may still accelerate their trials by making a demand for trial as soon as their preparation for trial is complete.” Id. at 384.

Obliging an accused to choose between two statutorily-guaranteed rights may evidence, to some observers, a cavalier attitude toward both the accused and his rights. But the McCrimmon opinion proceeds from a sound premise: the speedy trial statute does not create a game of “gotcha.” If trial is unreasonably delayed because the prosecution is dilatory, the prosecution must bear the consequences. If trial is unreasonably delayed because of circumstances beyond the control of either party, the prosecution must usually bear the consequences, because the law resolves most doubts in favor of the citizen accused. If, however, trial is unreasonably delayed because the defense is dilatory, the defendant must take the consequences. It is a nice question whether the trial in McCrimmon was delayed because the defense was dilatory (by insisting on deposition transcripts), or because of circumstances beyond the control of either party (the unavailability of adequate court reporter services). Apparently the Florida Supreme Court concluded that what defendants were really seeking in McCrimmon was not a speedy trial but a windfall discharge. The First District came to the same conclusion in Small v. State, 454 So. 2d 771 (Fla. 1st DCA 1984), and expressed its frustration with the way in which “the relatively straight forward purpose of the speedy trial rule may be completely defeated.” Id. at 772.

When the prosecution fails in its obligation to provide discovery on a timely basis, the defense should not be made to choose between its right to discovery and its right to a speedy trial. In George v. Trettis, 500 So. 2d 588 (Fla. 2d DCA 1986), the speedy trial period began to run at the time of arrest on January 30th. As of March 21st, the prosecution had not complied with its discovery obligation and a motion to compel was granted. On April 4th, and again on May 2nd, the defense brought to the court’s attention the prosecution’s failure to provide complete discovery. The case was repeatedly continued throughout the summer, as discovery trickled in to the defense in dribs and drabs. In October, well past the 180-day mark, the defense moved for discharge on speedy trial grounds. Although the trial judge denied the motion, the court of appeal reversed:

The record supports the conclusion ... that any problems with preparation of this case are largely of the state’s making. Discovery must be furnished within sufficient time to permit the defendant to make use of it without having to forfeit his right to a speedy trial, and when discovery is not promptly furnished, the court may continue a case at the state’s expense beyond the speedy trial limits even if such continuance effectively results in the discharge of the defendant.

Id. at 589 (citing State v. Williams, 497 So. 2d 730 (Fla. 2d DCA 1986); State v. Del Gaudio, 445 So. 2d 605 (Fla. 3d DCA 1984)). See also State v. Naveira, 807 So. 2d 766 (Fla. 1st DCA 2002); State v. Anderson, 781 So. 2d 524 (Fla. 5th DCA 2001); Alvarez v. State, 729 So. 2d 472 (Fla. 3d DCA 1999).

The defendants in Del Gaudio were charged by information in July of 1981 and promptly demanded discovery. The prosecution dragged its feet, and by October of the same year the defense had applied to the trial court for orders compelling discovery. Two such orders issued; neither was honored in its entirety; and the defense moved to dismiss. That motion was heard on December 30th, and denied in reliance on the prosecution’s representations that all discovery material had been produced as of that date. The defense then agreed to extend the speedy trial period, scheduled to lapse on January 4, 1982, until May 1st of that year.

On February 3rd, the prosecution provided substantial discovery material, notwithstanding its prior representation that discovery was completed as of December 30th. In response, the defense filed two motions: a motion to dismiss for violation of the statutory discovery rule, and a motion for discharge for violation of the statutory speedy trial rule. The trial court granted the former motion, and made no ruling as to the latter. Del Gaudio, 445 So. 2d at 607.

The court of appeal began its analysis by acknowledging that the prosecution had been “grossly negligent and dilatory” in complying with its discovery obligation. But the issue, as the court framed it, was whether outright dismissal was the appropriate sanction where, as here, the discovery violation “has not affected the defendants’ ultimate ability to defend against the charges and has not, as yet, been found to have violated their right to a speedy trial.” Id. at 606-7. The court distinguished between a defendant who receives discovery untimely, but still early enough in the litigation to digest the discovery materials in time for trial, and the defendant who receives the discovery so late that he cannot reasonably be expected to digest the material by the scheduled trial date:

When the State furnishes the discovery sufficiently in advance of the scheduled trial date to enable the defendant to utilize the discovery in the preparation of his defense, there is no longer any prejudice from the previous delay. If the discovery material and information comes too late to permit the trial to proceed as scheduled, the prejudice is extinguished when the trial is continued.

Id. at 610. The court recognized, however, that there is an inherent harshness in this holding; for it obliges the defendant

who receives eleventh-hour discovery “to choose between his right to have discovery and an adequate time to utilize it in preparing for trial and his right to a speedy trial.” Id. at 611. To spare defendants this Hobson’s choice, the court tempered its ruling with this dictum:

Where material discovery is furnished at a time which will not enable the defendant to make use of it in the preparation of his defense before the expiration of the speedy trial time limits, the court may properly continue the case to a date beyond those limits, charge the continuance to the state, and thereafter grant the defendant’s motion for discharge based on the speedy trial rule violation.

Id.For many defense lawyers, this dictum is the most memorable part of the Del Gaudio opinion. The court,

however, has never been entirely comfortable with it, and underscored its limitations in Colby v. McNeill, 595 So. 2d 115 (Fla. 3d DCA 1992).

McNeill was arrested on June 7th. He seasonably moved for discovery, and trial was initially set for August 1st. On that date, and again on August 29th and September 5th, trial was continued on defense motion, because the prosecution had failed to provide discovery. The court described the prosecution’s dereliction as “inexcusabl[e],” and referred to “diligent efforts by defense counsel to obtain” discovery. Id. at 116.

The 90-day speedy trial period applicable to McNeill’s offense expired on September 5th, and on that day his attorney duly filed a preliminary motion for discharge. On September 19th – still within the fifteen-day “window,” albeit barely – the case was called up for trial. The defendant again sought and was granted a continuance, this time on the ground that two police officers, material witnesses in the case, had failed to appear in response to defense deposition subpoenas. Trial was reset for September 25th, well beyond the fifteen-day “window” period; and on that date McNeill moved for final discharge.

Given the court’s panegyric over defense counsel’s earnest efforts to obtain timely discovery, and its execration of the prosecution’s delay, this case seems at first glance to fall squarely within the contemplation of the Del Gaudio dictum: a case in which “material discovery is furnished at a time which will not enable the defendant to make use of it in the preparation of his defense before the expiration of the speedy trial time limits” and therefore a case as to which the court ought to grant a continuance “beyond those limits, charge the continuance to the State, and thereafter grant the defendant’s motion for discharge based on the speedy trial rule violation.” But first glances can be deceiving. The McNeill court treated it as “well settled” that, although the prosecution is obliged to discover to a defendant the names of its material witnesses, it is under “no obligation ... to produce a witness for a defense discovery deposition.” McNeill at 118 (citing State v. Rodriguez, 483 So. 2d 751 (Fla. 3d DCA 1986); State v. Valdes, 443 So. 2d 302 (Fla. 3d DCA 1983); State v. Roig, 305 So. 2d 836 (Fla. 3d DCA 1974)). When the police officers failed to appear for deposition, the prosecution was not at fault. By moving for a continuance to complete the depositions, McNeill waived his speedy trial right. See also State v. Guzman, 697 So. 2d 1263 (Fla. 3d DCA 1997) (“For at least the sixteenth time, we hold that the rule that a successful defense motion for continuance waives the right to discharge under the speedy trial rule ... applies notwithstanding that the motion follows alleged discovery violations by the state.”); Moore v. State, 697 So. 2d 569 (Fla. 3d DCA 1997); State v. Brown, 527 So. 2d 209 (Fla. 3d DCA 1988) (Schwartz, C.J.).

See also State v. Burnett, 870 So.2d 858 (Fla. 3d DCA 2004). But cf. Hajal v. State, 864 So.2d 1167, 1169 (Fla. 5th DCA 2004) (“A continuance can be charged to the state, without resulting in a waiver of speedy trial, if the state has committed a discovery violation that requires the postponement of trial”) and Von Waldner v. State, 860 So.2d 1061 (Fla. 5th DCA 2003) (same). And in State v. Naveira, 873 So.2d 300 (Fla. 2004), the Florida Supreme Court held that when the prosecution files a charging document on the last day of the speedy trial period and the defendant invokes his right to a speedy trial by filing a notice of expiration of the speedy trial period, but later moves for a continuance based on insufficient time to prepare for trial, the continuance must be charged to the defendant and the speedy trial claim is waived.

The distinction drawn in McNeill and Brown is a valid one: just as the defendant should not be obliged to sacrifice his valuable right to a speedy trial because of the prosecution’s failure to make discovery, so the State should not be obliged to sacrifice a meritorious prosecution because of the nonfeasance of third parties. It could be

argued, however, that the distinction calls for yet further refinement. When a civilian witness fails to appear for deposition, surely that is a circumstance beyond the control of the prosecution (unless, of course, the prosecution procured the non-appearance, which would likely constitute obstruction of justice), and the prosecution should not bear the consequences. But what about police officers (as in McNeill)? Under traditional principal-agent doctrine they are arms of the state, in whose name the prosecution is brought. Cf. Del Gaudio, 445 So. 2d at 612 n.8 (“The State Attorney is responsible for evidence which is being withheld by other state agents, such as law enforcement officers ... .”) (citing State v. Coney, 294 So. 2d 82 (Fla. 1973)).

The neoteric science of DNA analysis posed a novel problem arising out of the conflict between the defendant’s right to a speedy trial and the defendant’s right to discovery. The defendant in State v. Trummert, 647 So. 2d 966 (Fla. 4th DCA 1994), was arrested on June 27, 1992, and remained incarcerated thereafter. She filed her discovery demand within days of her arrest, and subsequently filed a series of motions asking for results of blood analysis. The trial court entered at least two orders directing the prosecution to produce the demised discovery.

At a status conference held on March 3, 1994, the state sought a continuance, and asked that it be permitted to take blood samples from the defendant for DNA analysis. The court granted both applications. Because of the time required to complete DNA testing, the prosecution was obliged to seek another continuance on March 31. Id. at 967.

On April 7, 1994, the defense filed a speedy trial demand. Trial was set for May 23; but on the eve of trial, the prosecution provided the now-completed DNA analysis as additional discovery. Trummert sought exclusion of the DNA evidence, arguing that failure to exclude would oblige her, unfairly, to choose between her right to speedy trial and her right to discovery. The trial court agreed. Id.

The court of appeal reversed. Conceding that the prosecution’s failure to conduct DNA testing sometime between June of 1992 and March of 1994 was “negligent,” the court nonetheless insisted that “[t]his is not a discovery violation.” Id. at 968. The prosecution, after all, had provided the DNA discovery as soon as it was available. The appropriate remedy would have been a brief continuance, chargeable to the state, to enable Trummert to meet the DNA evidence.

The defendant in Banks v. State, 691 So. 2d 490 (Fla. 4th DCA 1997) was arraigned on May 4, and trial was set for May 26. At a calendar call held four days before trial, defense counsel sought a continuance, pointing out that he had only received the state’s discovery materials on May 20. The trial court granted the continuance, but rejected a defense request that the continuance be “charged” to the state. This the defense assigned as error.

The appellate court affirmed.

[W]here a trial is continued at a defendant’s request, the resulting delay is ‘attributable to the accused’ [for purposes of Rule 3.191(j)(2)]. As a general rule, a defense request for continuance, absent state misconduct, inexcusable delay in providing discovery, or other violation of defense discovery rights, waives the 175-day ‘speedy trial’ time and the defendant’s right to discharge ....”

Banks, 691 So. 2d at 491. See also State v. Miller, 672 So. 2d 855 (Fla. 5th DCA 1996). In dissent, Judge Farmer expressed concern that the majority opinion might be misread as providing “a very effective means for [trial judges to] avoid [...] the speedy trial” rule:

Judges now need merely set the case for trial within 20 days of arraignment. That will force the hapless defendant into requesting a continuance because he is, quite understandably, not ready for trial. That request for a continuance will then necessarily waive the general speedy trial provision.

Banks, 691 So. 2d at 493 (Farmer, J., dissenting). Certainly defense counsel should seek, and the trial court should grant, a trial date sufficiently distanced from the arraignment date to allow discovery practice appropriate to the scope of the case.

As far as appears from the appellate opinions, neither in Miller nor in Banks was any consideration given by counsel or the trial court to an extension of the applicable speedy trial periods under subparts (i) and (l) of the rule. Such an extension is permitted, for example, by court-approved stipulation, 3.191(i)(1); or on defense motion for good cause shown, 3.191(i)(3). The trial court has power to extend the time limits upon a showing by either party of exceptional circumstances, 3.191(i)(2). The examples of qualifying circumstances set forth at subpart (l) (see discussion supra) are just that – examples. The statute provides that “exceptional circumstances” include those enumerated at 3.191(l)(1)-(6).

Judicious use of the power vested in the court by subparts (i) and (l) would, in most instances, pretermit the head-on collision between discovery rights and speedy trial rights under the rules. It would also go far toward allaying the concerns expressed by Judge Farmer in his Banks dissent.

§6:2(f) The Effect of DischargeThe defendants in Weed v. State, 411 So. 2d 863 (Fla. 1982), were arrested on August 18th and charged with

misdemeanor possession of marijuana, plus a felony count not involving marijuana. Their trial took place in late December, and resulted in mistrial. In February, the prosecution moved to amend the marijuana count to charge felony possession. The trial court allowed the amendment, but in the same month granted a defense motion to dismiss the felony marijuana count on the grounds that it was “a new and different charge based on the same conduct or criminal episode and was therefore subject to the 180-day time period” that had begun to run at the time of arrest on August 18th. The prosecution then moved to reinstate the original misdemeanor possession charge, which motion the trial court denied.

The First District reversed, relying on the provision of Fla. R. Crim. P. 3.191(m) that grants 90 days for retrial after mistrial. But the Florida Supreme Court sided with the trial court, holding that the language of 3.191(m) “is not applicable to an information which has been amended to increase a charge from a misdemeanor to a felony after a mistrial on the misdemeanor.” The trial court was also correct in its ruling that, discharge having been granted on the felony possession charge, the prosecution could not reinstate the misdemeanor possession charge. Discharge on the felony count operated, pursuant to Fla. R. Crim. P. 3.191(n), to bar reprosecution not only on that count, but also as to “all other crimes ... which were or might have been charged as a result of the same conduct or criminal episode as a lesser degree or lesser included offense,” i.e. as to the misdemeanor possession charge. See also State v. Bush, 937 So. 2d 1148 (Fla. 5th DCA 2006); Brady v. State, 934 So. 2d 659 (Fla. 2d DCA 2006). In State v. Rohm, 645 So. 2d 968 (Fla. 1994), the Florida Supreme Court held that when the speedy trial period provided in Fla. R. Crim. P. 3.191(a) has fully run and the trial court grants a timely motion for discharge during the unexpired 15-day window, which discharge is subsequently reversed on appeal, the prosecution, on remand, has the full 90-day post-appellate period in which to bring the defendant to trial.

As the captioned language from Fla. R. Crim. P. 3.191(n) suggests, whether a speedy trial discharge as to crime A operates to bar prosecution for crime B is a question that should be answered by reference to the doctrine of double jeopardy. In Ballard v. Thompson, 421 So. 2d 779 (Fla. 5th DCA 1982), Ballard had been charged with five counts of embezzlement, which embezzlement had allegedly occurred in March of 1979; and received a speedy trial discharge. Some two years later, he was charged with five counts of embezzlement from the same individual, this embezzlement allegedly having occurred during April and May of 1979. Pursuant to Fla. R. Crim. P. 3.191(n), he sought, and was denied, discharge as to the second information. Concurring, Judge Cowart pointed out:

The only proper limitation on the number of different offenses for which a defendant can be prosecuted is the double jeopardy clause... . The problem is one of identity of offenses. While the statutory offenses charged in the first information are the same as those charged in the second information ... nevertheless, the factual events upon which each charge is based are necessarily different because the acts which allegedly constitute [the first acts of embezzlement] are necessarily different from [the later acts of embezzlement] ... . Obviously, the informations also relate to different funds.

Ballard, 421 So. 2d at 780. See also Jarrell v. State, 756 So. 2d 1102 (Fla. 1st DCA 2000); Baker v. State, 425 So. 2d 36, 41 (Fla. 5th DCA 1982) (Cowart, J., dissenting).

§6:2(g) The Effect of Mistrials, Appeals, etc.As the court noted in Weed, supra, Fla. R. Crim. P. 3.191(m) provides:

A person who is to be tried again or whose trial has been delayed by an appeal by the state or the defendant shall be brought to trial within 90 days from the date of declaration of a mistrial by the trial court, the date of an order by the trial court granting a new trial, the date of an order by the trial court granting a motion in arrest of judgment, or the date of receipt by the trial court of a mandate, order, or notice of whatever form from an appellate or other reviewing court that makes possible a new trial for the defendant, whichever is last in time. If a defendant is not brought to trial within the prescribed time periods, the defendant shall be entitled to the appropriate remedy as set forth in subdivision (p).

Weed, 411 So. 2d at 863. See generally, Frazier v. State, 761 So. 2d 337 (Fla. 4th DCA 1999). Although the captioned language provides 90 days for retrial after a final order on appeal as of right, the rule says nothing about the effect of a petition for an extraordinary writ. In Hochstrasser v. Demers, 491 So. 2d 1245 (Fla. 2d DCA 1986), the prosecution sought certiorari review of a trial court order suppressing evidence. It did not seek an order from the trial court extending the speedy trial period to encompass the time needed for the resolution of the certiorari petition. When the appeals court ruled, denying certiorari, the speedy trial time period had run. There was no 90-

day grace period, because 3.191(m) is inapplicable to petitions for extraordinary writs. Id. at 1246. See also Eckard v. Trowbridge, 483 So. 2d 45 (Fla. 4th DCA 1986).

In order to challenge the constitutionality of the statute for the violation of which he was charged, the defendant in Koshel v. State, 689 So. 2d 1229 (Fla. 5th DCA 1997), was obliged to waive his speedy trial rights. His motion to dismiss found favor with the trial court, but was rejected by the court of appeal and the Florida Supreme Court. Some five months after the U.S. Supreme Court denied review, Koshel had yet to be tried and accordingly moved to dismiss, claiming violation of the 90-day speedy trial guarantee of 3.191(m). The Fifth District, however, found that the waiver Koshel had executed pretrial was of the “one-size-fits-all” variety. “A waiver of speedy trial waives all provisions of the speedy trial rule, including the 90-day provision of rule 3.191(m), unless otherwise specified in the written waiver.” Id. at 1230. This result seems harsh at worst, anomalous at best. There are some, but not many, other contexts in which a waiver of trial-level procedural rights constitutes a blanket waiver of appellate and post-conviction rights as well. If Koshel had merely moved for a continuance of his trial date pending the resolution of his motion to dismiss, rather than execute a written waiver, his 90-day speedy trial entitlement under 3.191(m) would have remained intact. If Koshel had lost his pretrial motion to dismiss and gone to trial, his 90-day speedy trial entitlement under 3.191(m) would have remained intact if any court of appeal had reversed his conviction for any reason. In the future, counsel must be vigilant to assure that any written or oral waiver of speedy trial rights is carefully tailored as to its scope.

§6:2(h) The Effect of Nolle ProsequiFla. R. Crim. P. 3.191(o) provides:

The intent and effect of this rule shall not be avoided by the state by entering a nolle prosequi to a crime charged and by prosecuting a new crime grounded on the same conduct or criminal episode, or otherwise by prosecuting new and different charges based on the same conduct or criminal episode whether or not the pending charge is suspended, continued, or is the subject of entry of a nolle prosequi.

The defendant in State v. Agee, 622 So. 2d 473 (Fla. 1993), was charged with attempted second-degree murder in connection with a shooting on February 8, 1988, which shooting rendered one Donald Vandyk comatose. Agee made a written demand for speedy trial on July 22; 33 days before expiration of the speedy trial period, the prosecution entered a nolle prosequi, on the grounds that the victim was in a coma and there were no eyewitnesses. Id. at 474.

Sometime later – the opinion does not say how much later – Vandyk emerged from his coma, and police succeeded in locating not one but two eyewitnesses to the shooting. The prosecution promptly refiled charges against Agee. The trial court, however, granted a defense motion to dismiss on speedy trial grounds, and was affirmed by the court of appeal. Id.

The Florida Supreme Court approved the decision of the appellate court, holding that when the prosecution enters a nolle prosequi, the speedy trial period continues to run and the prosecution cannot refile charges based on the same conduct after the period has expired:

To allow the State to unilaterally toll the running of the speedy trial period by entering a nol pros would eviscerate the rule – a prosecutor with a weak case could simply enter a nol pros while continuing to develop the case and then refile charges based on the same criminal episode months or even years later, thus effectively denying an accused the right to a speedy trial while the State strengthens its case.

When faced with a missing witness or unconscious victim, as in the instant case, a prosecutor is not without options. The State may always seek a delay under Section [3.191](f), which allows judicial extensions for good cause.

Id. at 475. See also Ryan v. State, 768 So. 2d 19 (Fla. 3d DCA 2000); Bryant v. State, 757 So. 2d 617 (Fla. 4th DCA 2000); State v. Gantt, 688 So. 2d 1012 (Fla. 3d DCA 1997); Cordero v. State, 686 So. 2d 737 (Fla. 3d DCA 1997); Loftis v. State, 682 So. 2d 632 (Fla. 5th DCA 1996); Mercer v. Musleh, 682 So. 2d 570 (Fla. 5th DCA 1996); State v. Morris, 662 So. 2d 378 (Fla. 4th DCA 1995); Adams v. State, 659 So. 2d 396 (Fla. 2d DCA 1995); Dorian v. State, 642 So. 2d 1359 (Fla. 1994); State v. McFadden, 622 So. 2d 483 (Fla. 4th DCA 1993). See Genden v. Fuller, 648 So. 2d 1183 (Fla. 1994) (Agee rule also applies when prosecution takes a voluntary dismissal or “no action” rather than nolle prosequi); Villavicencio v. State, 719 So. 2d 322 (Fla. 3d DCA 1998); State v. Leslie, 699 So. 2d 832 (Fla. 3d DCA 1997); and Reed v. State, 649 So. 2d 227 (Fla. 1995). But see State v. Savitch, 925 So. 2d 482 (Fla. 4th DCA 2006) (no proper motion for discharge where prosecution refiled charges before speedy trial period expired and defense counsel filed a notice of appearance during speedy trial period but

before defendant was arrested). The court expressly rejected any inference in Zabrani v. Cowart, 506 So. 2d 1035 (Fla. 1987) and Bloom v. McKnight, 502 So. 2d 422 (Fla. 1987) that the 15-day “window of recapture” applies in such cases as Agee. See also State v. Williams, 791 So. 2d 1088 (Fla. 2001).

Footnotes

1 Prior to 1985, the Rule provided for automatic discharge after 180 days. Under the present version of the Rule, a defendant may file a preliminary motion for discharge after 175 days; the prosecution then has a “window” of up to 15 days to commence trial. See discussion infra.

2 Conflicting trial settings can give rise to speedy trial scheduling problems. Such conflicts should be resolved by reference to Florida Rule of Judicial Administration 2.052. Captioned “Calendar Conflicts,” this Rule provides that when an attorney has been ordered to appear in two different courtrooms at the same time (whether state or federal, trial or appeal), the judges concerned should resolve the matter between them by giving priority to criminal cases over civil cases; to jury trials over non-jury trials; to appellate proceedings over trial-level proceedings; and to the earlier-set case over the later-set case. Rule 2.052(a). Additionally, the judges are to consider the relative cost, number of witnesses and lawyers, travel, expected trial time, and age of each case, as well as “other relevant matters.” Id. at (b). Certainly a defendant’s speedy trial rights, and the prosecution’s cognate interest in prompt and expeditious proceedings, could be among such “other relevant matters.”

3 So long as the total recapture period prior to the commencement of trial does not exceed 15 days, violation of the five-day or ten-day components of that period is harmless. State v. Salzero, 714 So. 2d 445 (Fla. 1998); Poirier v. State, 719 So. 2d 1256 (Fla. 4th DCA 1998).