Legalese: Florida's Speedy Trial provisions

* First, a person charged with a criminal offense is Florida is entitled to the statutory speedy trial rights provided under the Florida Constitution and Florida Statutory provisions which provide for very specific time limits - 90 days for a misdemeanor and 175 days for a felony.

* Second, a person charged with a criminal offense is entitled to the federal constitutional protections under the Sixth Amendment which provide for a speedy trial even when the statutory remedy has been waived.

The speedy trial provisions provided by the state and federal provisions are "an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibility that long delay will impair the ability of an accused to defend himself." Dickey v. Florida, 398 U.S. 30, 37–38 (1970).

The Florida legislature in enacting the statutory speedy trial rights also recognized that the passage of time may blur the memories of the witnesses leading to an unjust verdict. The purpose of the speedy trial provisions is to provide a defendant with a speedy trial when he has a "bona fide" desire for a speedy trial. The right to a speedy trial is particular important when the police make an arrest and then the State Attorney's Office takes an unusually long time to file criminal charges.

 

The ninety day speedy trial right in misdemeanor cases often comes into play when the defendant is originally arrested for a felony and then the prosecutor with the State Attorney's Office makes a filing decision to only proceed on misdemeanor charges. The filing decision usually occurs within 21 days, however if the defendant is out of custody then the State Attorney Office may take longer to make the filing decision.

 

Other common types of cases in which the right to a speedy trial comes into play is when the defendant is charged with DUI involving a blood or urine test. If the police make an arrest and then obtain a blood or urine sample, it make take months for the test results to come back. If the defendant does not waive the right to a speedy trial the prosecutor is often faced with very little time to prepare for trial once the results to come back.

Those DUI cases involving a breath or urine test are also complicated by the fact that the State must usually present the chain of custody witnesses (all individuals how handled the testing sample) and expert testimony to interpret the results. Given the complexity of these misdemeanor DUI cases, the defendant is often in a position to prepare quickly for the trial and refuse to waive speedy trial. We have seen cases in which the prosecutor became so concerned about the time limit that the prosecutor was willing to drop or reduce the charges to avoid a speedy trial.

In felony DUI cases involving death or serious bodily injury (or in a misdemeanor case when only the defendant is seriously injured) law enforcement will seek to obtain a blood sample after the crash but before any formal arrest is made. Then the State Attoreny's Office will not file the charge until after the blood results come back (which can take 30 - 90 days). It is not uncommon in these types of cases for a prosecutor in Florida to wait up to four months to formally file charges. Because the defendant was not arrested on the day that the crash occurred the speedy trial period does not run until charges are filed.

 

Requesting a speedy trial is not always in the defendant's best interest because often the defense needs additional time to be throughly prepared for pre-trial motions and trial. In certain cases, however, in certain cases it may be advantageous for the defendant to assert his right to a speedy trial under Florida law. At the Sammis Law Firm, we have successfully asserted the speedy trial Florida statutory provisions to cause a discharge of criminal offenses when the State was unwilling or unable to proceed to trial. If you have pending charges in Hillsborough County, Pinellas County, Pasco County, Polk County, Manatee County or Sarasota County, contact an experienced Tampa criminal attorney to discuss your right to a speedy trial.

 

Under the Sixth Amendment of the United States Constitution and Section 16 of Article I of the Florida Constitution, a person accused of a criminal offense is entitled to a "speedy and public trial." In accordance with these constitutional mandates Florida Rule of Criminal Procedure Rule 3.191(a) provides that an individual arrested for a felony offense must be brought to trial within 175 days of the arrest and an individual arrested for a misdemeanor offense must be brought to trial within 90 days of an arrest. Under Rule 3.191(p), the remedy for failing to bring the defendant to trial within the time period prescribed is a discharge of the offense charged with a ban on any further prosecution.

The 90 day speedy trial period for a misdemeanor or the 175 day speedy trial period for a felony begins with the defendant's initial arrest (or when the defendant is taken into custody on the charge), regardless of when the charges are ultimately filed.

 

After the speedy trial period has run, the defendant can file a "notice of expiration of the speedy trial period" and serve the prosecutor with a copy of the pleading. Defense counsel should always serve a copy directly on the prosecutor assigned to the case. When the defendant files the "notice of expiration of the speedy trial period" it alerts the clerk's office and the prosecution of the need to bring the case before the attention of the court. The notice imposes a deadline upon the judge and the prosecutor to hold a speedy trial hearing within five (5) business days.

At the speedy trial hearing the court must schedule a trial to take place within the 10 day recapture period under Florida Rule of Criminal Procedure 3.191(p)(3). Florida law provides that the trial which must begin within ten (10) calendar days of the hearing on the notice unless one of the grounds listed in rule 3.191(p) applies. One of the limited excuses for non-compliance with the 10 day recapture period is the unavailability of the defendant or his counsel for trial. In other words, the delay can not be caused by the defendant or his attorney. If none of the limited excuses for non-compliance exists, then the defense can file a "motion for discharge" which requires the court to discharge (or throw out) the criminal charge. A defendant, by invoking the speedy trial rules, must have a "bona fide desire to obtain a trial sooner than otherwise might be provided, and a demand for a speedy trial shall be deemed a pleading by the accused that he is available for trial, has diligently investigated his case, and is prepared to go to trial in five days." § 3.191(c), Fla.Stat. The effect of the speedy trial rule is that the defendant is enlisted as a timekeeper, first, to realize the expiration of 175 days and, then, through the filing of a motion for discharge, to notify the state of its inattention to docket control.

 

Another benefit of not waiving your right to a speedy trial is that the State may not be allowed to amend the charging document or information after the speedy trial period has run, even if a notice of expiration has not been filed by the defense. This is especially important in a case in which the prosecutor has charged a less serious offense (sometime inadvertantly) and could figure out later that the criminal charge could be amended to a more serious offense.

If an amended information is filed after the speedy trial time period has expired and the defendant has not previously waived his or her right to speedy trial, then upon proper motion by the defendant, the new charges contained in the amended information must be dismissed if they arose from the same criminal episode as the charges contained in the original information. State v. Clifton, 905 So.2d 172, 178 (Florida 5th DCA 2005); Pezzo v. State, 903 So.2d 960, 961 (Florida 1st DCA 2005).

The Clifton court further states that, "Under these circumstances, it is not necessary to file a notice of expiration because the time limit has expired. All that is necessary is that the defendant file a Motion for Discharge directed to the new charges." Id.

 

 

Constitutional Right to a Speedy Trial

Even when the defendant waives his rights to a speedy trial under Florida Rule of Criminal Procedure Rule 3.191, the defendant may still have a right to have the charges discharged under his constitutional rights to a jury trial. The Supreme Court of the United States has listed the following four considerations in determining whether a delay caused by the prosecution caused a violation of an individual's right to a speedy trial:The length of the delay which is a triggering mechanism that can create a presumption of prejudice;xxx Whether the reason for the delay was negligent, deliberate or justified;The defendant's assertion of his right and effort to protect his right to a speedy trial; and Whether prejudice to the defendant resulted from the delay.