District Court of Appeal of Florida, First DistrictAug 28, 1974
298 So. 2d 504 (Fla. Dist. Ct. App. 1974)

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No. U-291.

July 9, 1974. Rehearing Denied August 28, 1974.

Appeal from the Circuit Court, Volusia County, David Popper, J.

Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appellant.

Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellee.

This appeal by the State seeks reversal of the trial court's order dismissing all criminal charges against appellee because of the failure to afford him a speedy trial in accordance with Criminal Procedure Rule 3.191, 33 F.S.A.

The only relevant facts of this case are that appellee was arrested on July 13, 1973, and incarcerated in the Volusia County Jail. On July 24, 1973, appellee filed a motion for speedy trial. On August 20, 1973, 38 days after his arrest, a direct information was filed charging appellee with the crimes of sale and possession of LSD. On October 2, 1973, seventy (70) days after his demand, appellee filed a pro se motion to dismiss the charges pending against him, claiming lack of a speedy trial. On October 10, 1973, after a hearing, the trial court ordered that all criminal charges against appellee be dismissed "for the reason that the Defendant has not been afforded his right to a Speedy Trial as set forth in Florida Rules of Criminal Procedure 3.191(a)(2)."

The State contends that the demand for a speedy trial filed by appellee was a nullity inasmuch as the demand was filed thirty-one days before appellee was charged by an information. Various cases are cited by the State starting with State ex. rel. Hanks v. Goodman, 253 So.2d 129 (Fla. 1971), for the proposition that a demand for speedy trial within 60 days may only be filed by a criminal defendant after he has been formally charged with a crime by indictment or information. We are bound by these pronouncements and, thus, insofar as the trial judge construed the motion for speedy trial to have been timely made, we must hold that he erred.

However, in accordance with the opinion of this Court written by Judge Boyer in State v. Hill, 299 So.2d 625 (dated June 18, 1974), we hereby construe the motion for discharge filed by the defendant in proper person (which followed the motion for speedy trial) as a petition for writ of habeas corpus. We therefore cannot say, in light of the facts before us, that the trial judge erred in his ultimate disposition of this case — ordering the release and discharge of the appellee.

Accordingly, the order appealed herein is affirmed.

RAWLS, C.J., and JOHNSON, J., concur.

SPECTOR, J., dissents.

I respectfully dissent from the majority opinion herein.

In Turner v. State ex rel. Pellerin, 272 So.2d 129, the Supreme Court held that a motion for speedy trial must be made after an information or indictment has been filed in order to put into operation the 60-day trial requirement. As authority for that interpretation of the speedy trial rule, the Supreme Court cited its decision in Hanks v. Goodman, 253 So.2d 129. Hanks was also cited in Pellerin for the requirement that in any event a motion for speedy trial must be bona fide in that the movant must actually be ready to go to trial.

After restating its holding in Hanks, the court concluded by further holding that the filing of a discovery motion after the filing of the speedy trial constituted "the antithesis of `a bona fide desire to obtain trial' . . ." In brief, Pellerin stands for the proposition that the filing of discovery motions negates the requirement of the speedy trial rule that an accused who has filed a speedy trial motion "is available for trial, has diligently investigated his case, and that he is [or will be] prepared for trial." Pellerin, supra, at page 130.

Applying the interpretation accorded to the speedy trial rule in the cited cases, I think we are required to hold that appellee's pro se motion for speedy trial was a sham and a nullity, and the representation that appellee was ready to go to trial inherent therein was negated by the discovery motion later filed by his appointed defense attorney.

I would reverse the trial court and reinstate the charges against the appellee.