Speedy trial, speedy games.

AuthorZayas, Angelica D.

Rule 3.191 of the Florida Rules of Criminal Procedure provides that all persons charged with a crime in the State of Florida are entitled to a speedy trial. In the absence of a demand for a speedy trial, persons charged with a felony are entitled to be brought to trial within 175 days of having been taken into custody (1) and persons charged with misdemeanors are entitled to be brought to trial within 90 days of having been taken into custody. (2) All defendants with a bona fide desire to obtain a trial sooner than otherwise might be provided can demand the right to be brought to trial within 60 days by filing a demand for speedy trial. (3) Upon expiration of the appropriate time period, a defendant may file a notice of expiration of speedy trial time. (4) Within five days of receipt of the notice of expiration, the trial court must hold a hearing to determine whether the failure to bring the defendant to trial is attributable to the defendant and, if not, schedule trial within 10 days of the hearing. (5) A defendant not brought to trial within this "window" period may be entitled to discharge (6)

The purpose of the speedy trial rule is to ensure a speedy trial, not a speedy discharge. (7) Nonetheless, there are many examples of attempts to use the speedy trial rule as a means to avoid a trial on the merits. (8) This article will discuss judicial treatment of the many games that have been played in the attempt to subvert the intent of the speedy trial rule.

Demand for Speedy Trial, Notice of Expiration, Motion for Discharge

The speedy trial rule currently provides that a defendant "may, at any time after the expiration of the prescribed time period, file a notice of expiration of speedy trial time" to trigger the window period. (9) Until the rule was amended in 1992, the pleading filed to invoke the window provision was designated a "motion for discharge." The 1992 amendment was intended to "differentiate between two separate and distinct pleadings [then] referred to as `motion for discharge.'" (10) Under the current rule, a notice of expiration, rather than a motion for discharge, is filed after the speedy trial time period has elapsed to put the court and the state on notice that only 15 days remain to bring the defendant to trial. A motion for discharge is filed under the current rule after the window period has expired and there remains no time to bring the defendant to trial. Although the language of the rule now seems straightforward, attempts have been made to use the terms in the rule interchangeably to defeat the purpose of the rule.

In Clark v. State, 698 So. 2d 1274 (Fla. 3d DCA 1997), the defendant filed a petition for writ of prohibition in the appellate court, suggesting that the trial court should have treated his "motion for discharge" as a "notice of expiration" and should have brought him to trial within 15 days of the motion notwithstanding the fact that the motion was not placed on calendar by the defendant (or anyone else) until more than 15 days had elapsed. The appellate court rejected the defendant's suggestion that the "notice of expiration" and the "motion for discharge" were synonymous pleadings invoking the window period set forth in Rule 3.191(p) and denied the petition. Because a "motion for discharge" may not be granted unless it is well taken when filed, there is no necessity for scheduling a hearing on the motion at any particular time. On the other hand, a properly designated notice "alerts the clerk and the prosecution that the case must immediately be brought to the attention of the court by placing it on calendar within a day or two so that the recapture period may be complied with." (11) The defendant's actions were characterized by the appellate court as an attempt to "entrap the clerk, the prosecution and the court into depriving [the defendant] of rights which he did not properly assert." (12) In Dabkowski v. State, 711 So. 2d 1219, 1220 (Fla. 5th DCA 1998), the Fifth District noted that the a defendant "is not entitled to a 'speedy dismissal,' but only to a 'speedy trial'" and also held that a defendant who filed a motion for discharge rather than a notice of expiration was not entitled to discharge.

In State v. Gibson, 783 So. 2d 1155, 1159 (Fla. 5th DCA 2001), the Fifth District rejected the suggestion that a notice of expiration could act as a substitute for a demand for speedy trial pursuant to Rule 3.191(b) because the notice filed by the defendant failed to comport with the requirements of Rule 3.191(b).

Bona Fide Desire for Speedy Trial

Notwithstanding the requirement that a defendant who files a demand for speedy trial have a bona fide desire to obtain a trial sooner than otherwise might be provided, the appellate courts have found that many defendants attempt to use the speedy trial rule to obtain a speedy discharge or dismissal rather than a speedy trial. (13) These attempts have been harshly criticized by the courts (14) In one instance, the appellate court suggested that sanctions should be imposed against appellate counsel where "defense counsel's actions in the county court were so obviously and disingenuously calculated to secure an outright dismissal, rather than either the discovery in question or a speedy trial," that the appeal constituted "a frivolous attempt to reverse the plainly appropriate rejection of those tactics by both courts below." (15)

In State v. Reaves, 609 So. 2d 701 (Fla. 4th DCA 1992), the Fourth District reversed the discharge of three defendants on speedy trial grounds because the record did not demonstrate that the defendants were ready for trial and because the defendants did not demonstrate a bona fide desire for a speedy trial when they filed their demand pursuant to Rule 3.191(a)(2). This conclusion was supported by four facts: 1) the demand referred to Rule 3.191 both in the title and the body of the pleading but did not use the phrase "demand for speedy trial"; 2) the certificate of service reflected delivery to "the State Attorney's Office" instead of a p. particular attorney as required by local rule; 3) the defendants subsequently filed a status report detailing the numerous pleadings to be filed and resolved before trial without making any reference to the demand; and 4) the defense attorney admitted he had intentionally attempted to seek discharge under the speedy trial rule without making it "horribly obvious" that his clients were demanding a speedy trial. In considering the claim that the trial court erred in granting the defendants' demand for discharge, the appellate court concluded that counsel's acts and omissions "crossed the line for acceptable conduct in the courtroom." (16) The appellate court further noted that:

The right to a speedy trial is an important right. Accused persons should not languish in jail or face unproven charges for an unreasonable length of time. When this right is exercised it should be squarely dealt with and enforced. However, a request pursuant to this right should be presented forthrightly and determined on its merits. In other words, as opposed to not making it "horribly obvious," the demand should be made loud and clear to both the court and the state. The right is demeaned, and...

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