At page 272 Waiving speedy trial rights by requesting continuance15 citing cases“when a defendant requests a continuance prior to the expiration of the applicable speedy trial time period for the crime with which he is charged, the defendant waives his speedy trial right as to all charges which emanate from the same criminal episode.”
- Tramel v. Florida Attorney Gen. (Duval Cnty.), No. 3:19-cv-01071 (M.D. Fla. July 19, 2022).(As the district court correctly stated, when a defendant requests a continuance prior to the expiration of the applicable speedy trial time period for the crime with which he is charged, the defendant waives his 42 spe…)
- Dempsey v. State, 82 So. 3d 928 (Fla. 4th DCA 2011).publishedThe Court held that the defense continuance in juvenile court (which waived the right to discharge) applied to the subsequently-filed adult charges: “This waiver [the waiver in juvenile court] is construed as an ongoing waiver of speedy tr…
- Nelson v. State, 993 So. 2d 1072 (Fla. 4th DCA 2008).published In Stewart v. State, 491 So.2d 271, 272 (Fla.1986), the court explained the rule as follows: "[W]hen a defendant requests a continuance prior to the expiration of the applicable speedy trial time period for the crime with which he is charg…
- Ryan v. State, 768 So. 2d 19 (Fla. 3d DCA 2000).published(when a defendant requests a continuance before expiration of the "applicable speedy trial time period" for the charged crime, defendant waives speedy trial rights for all charges arising from that episode)
- Runyon v. State, 743 So. 2d 619 (Fla. 4th DCA 1999).publishedIn Stewart v. State, 491 So.2d 271, 272 (Fla.1986), our supreme court held that “when a defendant requests a continuance prior to the expiration of the applicable speedy trial time period for the crime with which he is charged, the defenda…
- State v. Dorian, 619 So. 2d 311 (Fla. 3d DCA 1993).publishedGreen v. Patterson, 279 So.2d 362, 363-64 (Fla. 2d DCA 1973). [5] Stewart v. State, 491 So.2d 271, 272 (Fla. 1986). [6] State v. McDonald, 538 So.2d 1352, 1353 (Fla. 2d DCA 1989). [7] State v. Agee, 588 So.2d 600 (Fla. 1st DCA 1991). [8] S…
- Thompson v. State, 615 So. 2d 737 (Fla. 1st DCA 1993).published“[W]hen a defendant requests a continuance prior to the expiration of the applicable speedy trial time period for the crime with which he is charged, the defendant waives his speedy trial right as to all charges which em…”
- Noack v. State, 260 So. 3d 1172 (Fla. 1st DCA 2018).published (holding that a request for continuance prior to the expiration of the applicable time period under Rule 3.191 constitutes a waiver of the time limits under the rule)
- State v. Nelson, 26 So. 3d 570 (Fla. 2010).publishedSee Stewart v. State, 491 So.2d 271, 272 (Fla.1986); Atkins v. State, 785 So.2d 1219, 1220 (Fla. 4th DCA 2001); Morris v. State, 715 So.2d 1177, 1178-79 (Fla. 4th DCA 1998).
- State v. Lopez, 982 So. 2d 1270 (Fla. 3d DCA 2008).published(observing that defense request for continuance before speedy trial period runs waives speedy trial right)
Show 5 more citing cases
- Alvarez v. State, 849 So. 2d 1089 (Fla. 3d DCA 2003).published(holding that the purpose of Florida Rule of Criminal Procedure 3.191(o), which in pertinent part is the same as rule 8.090©, “is to prevent the state from circumventing the speedy trial rule ... by nol prossing a charge…)
- Morris v. State, 715 So. 2d 1177 (Fla. 4th DCA 1998).published(speedy trial waiver on felony charge carried over to refiled *1179 information charging only misdemeanor; "defendant waives his speedy trial right as to all charges which emanate from the same criminal episode.)
- Marvin E. Noack v. State of Florida, No. 15-5620 (Fla. 1st DCA Dec. 27, 2018).published(holding that a request for continuance prior to the expiration of the applicable time period under Rule 3.191 constitutes a waiver of the time limits under the rule)
- State v. Templar-O'Brien, 173 So. 3d 1129 (Fla. 2d DCA 2015).published(The state could not have violated rule 3.191(h)(2) by nol pressing the information when the defendant had already waived his rights under the rule.)
- Ruggio v. Vining, 755 So. 2d 792 (Fla. 2d DCA 2000).published(party to lawsuit waived right to jury trial in pretrial statement)
Other citing cases
- State v. Gibson, 783 So. 2d 1155 (Fla. 5th DCA 2001).published
- McPhee v. State, 143 So. 3d 963 (Fla. 3d DCA 2014).published
- Atkins v. State, 785 So. 2d 1219 (Fla. 4th DCA 2001).published
- Jones v. State, 658 So. 2d 122 (Fla. 2d DCA 1995).published
v.
STATE of Florida, Respondent.
Michael E. Allen, Public Defender, Larry G. Bryant, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for petitioner.
Jim Smith, Atty. Gen., Wallace Allbritton, Asst. Atty. Gen., Tallahassee, William N. Meggs, State Atty., Elaine K. Ashley, Asst. State Atty., Second Judicial Circuit, Tallahassee, for respondent.
McDONALD, Chief Justice.
The First District Court of Appeal has certified the following question as being one of great public importance:
IF THE STATE FILES A FELONY CHARGE AGAINST THE DEFENDANT AND THE DEFENDANT MOVES FOR A CONTINUANCE MORE THAN 90 DAYS BUT LESS THAN 180 DAYS AFTER HIS ARREST, AND THE STATE THEN NOL PROSSES THE FELONY CHARGE AND REFILES THE INFORMATION CHARGING A MISDEMEANOR, IS THE DEFENDANT ENTITLED TO AN IMMEDIATE DISCHARGE UNDER THE SPEEDY TRIAL RULE?
Stewart v. State, 470 So.2d 101, 102 (Fla. 1st DCA 1985). This Court has jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution. We answer in the negative and approve the opinion of the district court.
Stewart was arraigned on June 18, 1983 on the charge of grand theft. On December 2, 1983, approximately 157 days later,[*272] Stewart requested a continuance, thereby waiving his rights under the speedy trial rule. Ziegler v. State, 402 So.2d 365 (Fla. 1981), cert. denied, 455 U.S. 1035, 102 S.Ct. 1739, 72 L.Ed.2d 153 (1982); Mohler v. State, 466 So.2d 1233 (Fla. 2d DCA 1985); Fla.R.Crim.P. 3.191. On January 17, 1984 the state nol prossed the felony information charging grand theft and on January 21, 1984 filed a new misdemeanor information charging petit theft. Stewart then moved for a discharge on speedy trial grounds and the county court granted the motion. The state appealed and the circuit court reversed. On petition for writ of certiorari the district court approved the decision of the circuit court, but certified the instant question.
As the district court correctly stated, when a defendant requests a continuance prior to the expiration of the applicable speedy trial time period for the crime with which he is charged, the defendant waives his speedy trial right as to all charges which emanate from the same criminal episode. E.g., State v. Albanez, 448 So.2d 596 (Fla. 2d DCA 1984); Goldstein v. State, 447 So.2d 903 (Fla. 4th DCA 1984); State v. Cocalis, 443 So.2d 138 (Fla. 3d DCA 1983); State v. Jones, 404 So.2d 395 (Fla. 5th DCA 1981); Conner v. State, 398 So.2d 983 (Fla. 1st DCA 1981). Moreover, the district court correctly concluded that Florida Rule of Criminal Procedure 3.191(h)(2) is inapplicable under the facts of this case. The purpose of rule 3.191(h)(2) is to prevent the state from circumventing the speedy trial rule and extending the applicable time period by nol prossing a charge and refiling a new information when the time limit approaches. See Fyman v. State, 450 So.2d 1250 (Fla. 2d DCA 1984); Wright v. State, 387 So.2d 1060 (Fla. 5th DCA 1980). The state could not have violated rule 3.191(h)(2) by nol prossing the information when the defendant had already waived his rights under the rule. State v. Condon, 444 So.2d 73 (Fla. 4th DCA 1984); State v. Kerper, 393 So.2d 77 (Fla. 5th DCA 1981).
Further, we reject Stewart's argument that the speedy trial period in the instant case expired on day ninety. At the time Stewart requested the continuance, he stood charged with grand theft, for which the applicable speedy trial period was 180 days. Fla.R.Crim.P. 3.191(a)(1). Because Stewart requested the continuance within that period, the request constituted a timely waiver.
Accordingly, we answer the certified question in the negative and approve the opinion of the district court.
It is so ordered.
ADKINS, BOYD, OVERTON, EHRLICH, SHAW and BARKETT, JJ., concur.