Speedy Trial

2023 - FJC II - Speedy Trial

SPEEDY TRIAL

FJC II 2023

David Denkin Tesha Ballou

Sarasota County Judge 18

Circuit Judge

[email protected] Tesha.Ballou@flcourts18.org

2023 - FJC II - Speedy Trial

Speedy Trial

Overview

Florida Rule of Criminal Procedure 3.191(a) provides that a person charged

with a crime by indictment or information “shall be brought to trial…within

90 days of arrest

if the crime charged is a misdemeanor or within 175 days

of arrest if the crime charged is a felony.”

The time begins to run when the defendant is arrested or served with a notice

to appear in lieu of arrest.

Although the rule requires the state to bring the defendant to trial within the

90/175 days, the remedy for a violation (assuming the defendant is charged

within the speedy trial period) is not self-executing or an automatic

discharge.

Instead, after the deadline expires, the rule provides that a defendant may

file a separate pleading entitled ‘Notice of Expiration of Speedy Trial Time,’

and serve a copy on the prosecutor. The filing of such a notice invokes two

deadlines. 1) subsection 3.191(p)(3) provides that no later than five days

from the date of filing the notice, unless an exceptional circumstance exists,

the trial court shall hold a hearing on the notice. 2) The rule further provides

that the defendant be brought to trial within ten days of the hearing. If the

defendant is not brought to trial within the time period and no exceptional

circumstances exist, the defendant shall be discharged upon motion of the

Defendant or Court.

Or served with a Notice to Appear in lieu of an arrest.

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FLORIDA’S PROCEDURAL RIGHT TO SPEEDY TRIAL

1. Types of Procedural Speedy Trial

• Rule 3.191(a) Speedy trial without demand

• Rule 3.191(b) Speedy trial with demand

2. Speedy Trial without demand 3.191(a)

• Time Limits

 90 days- misdemeanors

 175 days- felonies

• Commencement of time limit

 The day defendant is taken into custody.

 Custody is when a person (3.191(d)):

o Arrested as a result of the conduct or

criminal episode that gave rise to the crime

charged, or

o served with notice in lieu of arrest.

o The date of arrest is excluded when

calculating the deadline.

• Formal arrest, complete with fingerprinting and

formal charges, not always necessary to start the

running of the speedy trial time.” Id. But,

“something more than an investigatory detention is

required.” Bulgin v. State, 912 So.2d 307 (Fla.

2005). “[F]or the purposes of the speedy trial rule

... there is no such thing as an ‘unarrest.’ Williams

v. State, 757 So.2d 597, 598 (Fla. 5th DCA 2000).

State v. Devard, 178 So.3d 41, 43 (Fla. 2d DCA

2015) (Defendant was handcuffed, taken into

custody and her car was seized. She was taken to

the police station, read Miranda and later released

after being advised charges may be forthcoming.

An arrest had taken place for purposes of speedy

trial.)

• When the officer placed Mr. Gilliam in custody for

the Duval County warrant and advised him of why,

the detention constituted an arrest and the start of

the speedy trial clock. Gilliam v. State, 312 So.3d

1280 (Fla. 1

DCA 2021).

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• Speedy trial rule does not apply to probation cases.

Klein v. State, 237 So.3d 1105 (Fla. 3d DCA

2018); Gonzalez v. State, 447 So.2d 381 (Fla. 3d

DCA 1984).

3. Speedy trial with Demand 3.191(b)

• Time Limit

 50 days from filing the demand

• Commencement of time limit:

Every person charged with a crime by indictment or

information shall have the right to demand trial within 60 days

by filing a pleading entitled “Demand for Speedy Trial” and

serving a copy on the prosecutor.

• Accused is bound by the demand. 3.191(g). Defendant is

affirmatively stating that they are:

 Available for trial and

 Have diligently investigated the case, and

 Are prepared or will be prepared within 5 days.

• When the demand is filed, the court shall hold a calendar call

within 5 days and set trial no earlier than 5 days nor more than

45 days of the calendar call. If not tried within 50 days of filing

demand than Defendant can seek relief by filing Notice of

Expiration under 3.191(p)(2) & (3).

• Demand for Speedy Trial filed pro se while represented by

counsel has an effective date as of the date of adoption by

counsel not the date of filing. Cornelius v. State, 223 So.3d

398 (Fla. 5

DCA 2017).

• A Defendant who is in Florida state custody may demand

speedy trial even though he/she is not in the jurisdiction of the

court where the charge is pending. Deriso v. State, 221 So.3d

1231 (Fla. 5

DCA 2017).

4. Striking a demand for speedy trial

• ASA, not court, should move to strike the Demand if

defendant not prepared for trial. 3.191(g).

• Defendant is not compelled to participate in Discovery.

Inquiry is whether the defendant has a “bona fide desire”

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for a speedy trial. Landry v. State, 666 So.2d 121

(Fla.1995).

• Generally, defendant may not file Demand and then set

depositions, substantive motions, or late notice of alibi.

These are valid reasons for the court to strike the

demand. State ex rel. Furland v. Conkling, 405 So.2d

773 (Fla. 5

DCA 1981).

• Defendant may continue to participate in plea

negotiations after Demand. Obanion v. State, 496 So.2d

977 (Fla. 3

DCA 1986).

• Defendant may amend witness list to add an

inconsequential witness, such as a records custodian.

• A demand may be stricken if a person is “unavailable”

for trial. 3.191(k)

• Unavailability includes when:

 Defendant or counsel fails to attend a mandatory court

proceeding.

 The Defendant or counsel is not ready for trial on the

date of trial.

 If the defendant is in custody outside the jurisdiction

or is in federal custody and is charged with a crime in

Florida, he is not entitled to the benefit of the rule

until the person returns to Florida or returned to the

jurisdiction of the court and written notice of the

return is provided to the court and served on the ASA.

Rule 3.191(e). State v. Garza, 807 So.2d 790 (Fla. 2d

DCA 2002).

 A defendant incarcerated in another county within

Florida is NOT presumptively unavailable for trial,

even if the other county refuses to transport him.

Mainwaring v. State, 11 So.3d. 986 (Fla. 5

DCA

2009); Deriso v. State, 221 So.3d 1231 (Fla. 5

DCA 2017).

5. Discovery Violations

• The filing of a Notice of Expiration (NOE) does not

forfeit the right to further discovery. If the state files late

discovery after speedy trial has run and after the filing of

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an NOE and if the defendant is not ready for trial because

of the substantial discovery violation, a defendant may

secure a continuance without waiving speedy trial rights.

Feast v. State, 126 So.3d 1168 (Fla. 4

DCA 2012).

• The State must furnish discovery within sufficient time to

allow the defendant to prepare for trial without forfeiting

his right to a speedy trial. However, the defendant must

exercise due diligence in properly preparing for trial to

establish prejudice. State v. Zackery, 181 So.3d 1204

(Fla. 5

DCA 2015).

• State v. Valdez, 44 So.3d 184 (Fla. 2d DCA 2010) (The

court here noted late discovery and that the case was

continued charging the continuance to the state may

have been too harsh and that the trial court should have

considered lesser sanctions.)

• The defendant cannot properly declare, through a notice

of expiration of speedy trial time, that he is ready for trial

while knowing that substantial discovery violations have

been ongoing for several weeks and did not seek judicial

intervention beforehand. Before granting a State-charged

continuance beyond recapture window (1) State must

have violated a rule; (2) if possible Court must provide

relief to defendant that permits State to move forward

within recapture period; (3) Defendant seeking to take

advantage of speedy trial rule must be acting in manner

consistent with securing a speedy trial and not a speedy

discharge. State v. Wilson, 164 So. 3d 129 (Fla. 1

DCA

2015); See State v. T.G., 990 So. 2d 1183, 1184 (Fla. 3

DCA 2008) (A defense continuance did not waive

speedy trial right where there has been an inexcusable

delay in providing discovery.)

6. Extension of Speedy Trial

• Under 3.191(i) speedy trial limits may be extended when

procured by:

 Stipulation announced in court or signed by the party

against whom the stipulation is enforced;

 Order of the court based upon exceptional circumstance

defined by 3.191(l);

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 Order of the court with good cause shown by the

accused;

 Order of court for reasonable time to address competency

or physical ability of accused to stand trial or pretrial

motions;

 Appeals by the state, DNA testing on Defendant’s behalf,

and trial on other charges of Defendants;

 Administrative order issued by the Chief Justice. The

time periods established by the Rule may be extended by

“administrative order issued by the chief justice, under

Florida Rule of Judicial Administration

2.205(a)(2)(B)(iv), suspending the speedy trial

procedures as stated therein.” Fla. R. Crim. P.

3.191(i)(5). State v. Lowery, 319 So. 3d 118, 120 (Fla. 3d

DCA 2021). Supreme Court Administrative Order

AOSC19-43, which was issued to accommodate court

proceedings in the wake of Hurricane Dorian.

• Exceptional circumstances under Rule 3.191(l) are those

circumstances that as a matter of substantial justice to the

accused or the state or both, require an order by the court. That

includes: unexpected illnesses, incapacity or unforeseeable and

unavoidable absence of a person whose presence or testimony

is uniquely necessary for a full and adequate trial;

• the complexity of the case;

• unavailability of specific evidence despite diligent efforts, but it

will become available;

• unanticipated developments that materially affect the trial; or

• a showing by the state that the accused has caused a major

delay or disruption in the preparation of the proceedings.

• Exceptional Circumstance does not include: Crowded dockets

or general court congestion, lack of available jurors, failure to

obtain witnesses or courthouse closure. These are not

considered good cause. Jones v. State, 707 So.2d 905 (Fla. 2d

DCA 1998). [Note: This was changed by AOSC 21-17.]

• Customary 2-week holiday taken by county courts did not

amount to exceptional circumstances tolling speedy trial.

Sullivan v. State, 913 So.2d 762 (Fla. 5

DCA 2005).

• NOTE: The determination of extenuating circumstances must

occur prior to the expiration of time and a retroactive finding

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that an earlier continuance was for exceptional circumstances is

not allowed. Underwood v. Johnson, 651 So.2d 760, 762 (Fla.

DCA 1995).

7. Filing Notice of Expiration of Speedy Trial

• Any time after expiration of the time periods in 3.191(a) and

(b)4, a Defendant may file a separate pleading entitled “Notice

of Expiration of Speedy Trial” and serve a copy on the ASA.

Rule 3.191(2) The speedy trial rule is not self-executing. A

defendant must take affirmative steps to obtain a discharge and

the State is entitled to the “recapture provision” of the rule.

State v. Nelson, 26 So.3d 570 (Fla. 2010). Generally, a

defendant MUST first file a Notice of Expiration of Speedy

Trial before moving for discharge. State v. McCullers, 932

So.2d 373 (Fla. 2d DCA 2006).

• T

he Notice of Expiration triggers the recapture provision in

3.191(p)(2).

o Possible Exception:

 Nolle prosequi and/or failure to provide Defendant

a notice of filing: The State cannot not file a nolle

prosse and later file an Information within speedy

trial, but not provide notice to the defendant until

well after the speedy trial period has run. The State

is not entitled to a recapture period where its own

conduct prevented the defendant from asserting

their speedy trial rights. Born-Suniaga v. State,

256 So.3d 783 (Fla. 2018); State v Drake, 209

So.3d 650 (Fla. 2d DCA 2017); Puzio v. State,

969 So.2d 1197 (Fla. 1

DCA 2007).

• The Florida Supreme Court noted that the speedy trial rule,

3.191(o) provides that “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.” Born-Suniaga v. State, 256 So.3d 783 (Fla. 2018).

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The rule itself expressly warns that the State may not

circumvent the intent of the rule by appearing to drop charges,

only to refile them later. The Court noted that the State may not

lure the Defendant into believing there is no need to file a

notice of expiration because no charges are pending. Id. at 788.

o Failure to file before Expiration of Speedy Trial: Where

the state fails to charge the defendant within the speedy

trial period, a notice of expiration is not necessary.

Walden v. State, 979 So.2d 1206 (Fla. 4

DCA 2008).

• When defense counsel files a Notice of Expiration that the 175-

day speedy trial requirement has expired (or 90 days for a

misdemeanor) it is a signal that the defendant is prepared and

desires the setting of a trial.

• The State must be served with a copy of the Notice of

Expiration before Defendant is entitled to dismissal for failing

to bring Defendant to trial. 3.191(p)(2); State v. Hollis, 127

So.3d 609 (Fla. 4

DCA 2012).

• A Defendant’s pro se notice of expiration of speedy trial not

adopted by his counsel is a nullity. State v. Templar-Obrien,

173 So.3d 1129 (Fla. 2d DCA 2015).

8. ‘5’ and ‘10’ day window “Recapture”

• The recapture period illustrates the principle that a defendant

has a right to a speedy trial, not the right to a speedy discharge

without trial. State v. Nelson, 26 So.3d 570 (Fla. 2010).

• 3.191(p)(3) plainly provides for a recapture window comprised

of 5 days for the hearing followed by 10 days for the trial. State

v. S.A., 133 So.3d 506 (Fla. 2014).

• The title and order of the pleadings under Rule 3.191 matter.

State v Gibson, 783 So.2d 1155(Fla. 5th DCA 2001); Clark v

State, 698 So.2d 1274(Fla. 3rd DCA 1997). The title and

order of Motions and Notices under Rule 3.191(b), (j), (p)(2)

and (3) are: 1) “Demand for Speedy Trial” or natural speedy, 2)

“Notice of Expiration”, and 3) Motion for Discharge.

• The time begins with the filing of the motion. Under the

computation of time rule, intervening weekends and legal

See paragraph 8 of this document. The 10-day period was increased to 30 days.

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holidays shall be excluded in calculating the deadline for

periods less than 7 days such as the 5-day hearing. See Fla. R.

Gen. Prac & Jud. Admin. 2.514(a)(3). The Court begins

counting on the day after the NOE is filed. Armas v. State, 811

So.2d 775 (Fla. 3rd DCA 2002) The court in S.A. held that

“…because the State complied with the recapture window’s two

separate periods…it timely brought S.A. to trial. Id; State v.

J.C., 154 So.3d 496 (Fla. 4

DCA 2015).

• The Court shall conduct a Recapture Hearing which is triggered

by a timely filed and served NOE. 3.191(h) & (p).

• The state is not entitled to the recapture where it enters a nolle

prosse on a charge and then re-files it after speedy trial has

expired. The State cannot file charges after speedy trial has

expired and is not entitled to a recapture period. 3.191(o); State

v. Williams, 791 So.2d 1088 (Fla. 2001); State v. Agee, 622

So.2d 473 (Fla. 1993) (nolle prosse); Genden v. Fuller, 648

So.2d 1183 (Fla. 1994) (same rule applies when State initially

decides not to file charges by a voluntary dismissal or no

action).

• NOTE: State was entitled to recapture period following

expiration of speedy trial period under speedy trial rule, even

though defendant was not given notice of charges until after

speedy trial period expired, where State took no affirmative

steps to terminate its prosecutorial efforts or lull defendant into

believing that it was unnecessary for her to exercise her right to

file notice of expiration. “We caution the State, however, that

our decision does not give it license to purposefully delay

filing charges until shortly before the expiration of speedy

trial, relying on the recapture period. Further, our decision

does not relieve the State from conducting a diligent search

to locate a defendant and notify him of the charges against

him.” State v. Devard, 178 So. 3d 41 (Fla. 2d DCA 2015).

• Immediate discharge found to be appropriate where the

Information was sealed and thus inaccessible to the Defendant

during the speedy trial period and he was not notified of the

charges until after the speedy trial period had expired. Even

though it was the Clerk, not the State, that sealed the

information, the State was nevertheless aware that the

Defendant was in custody and failed to notify him. Intent of the

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State is irrelevant and the result was the same “and to allow

the State the recapture period would defeat the purpose of Rule

3.191. State v. Drake, 209 So.3d 650 (Fla. 2d DCA 2017).

Drake was approved by the Florida Supreme Court in Born-

Suniaga v. State, 256 So.3d 783, 789 (Fla. 2018).

• Born-Suniaga v. State, 256 So.3d 783, 789 (Fla. 2018)

disapproved of State v. Jiminez, 44 So.3d 1230 (Fla. 5

DCA

2010).

• If the speedy trial period runs prior to filing of charges, the

Defendant is entitled to discharge. Garrett v. State, 87 So.3d

799 (Fla. 1

DCA 2012); Gilliam v. State, So.3d 1280 (Fla. 1

DCA 2021).

9. Waiver of Speedy Trial

• Waivers may be express or implied. Requesting or acquiescing

to a continuance constitutes a waiver of speedy trial. Failing to

appear at a mandatory court proceeding likewise operates as a

waiver.

• However, mere silence at a proceeding where a trial date is set

beyond speedy is not a valid waiver. Underwood v. Johnson,

651 So.2d 760, 762 (Fla. 1

DCA 1995).

• Even after a waiver, a defendant is still entitled to make a

demand for speedy trial under 3.191(b).

• Requesting a continuance after speedy trial has expired but

before a defendant files a notice of expiration under the rule

does constitute a waiver. State v. Nelson, 26 So.3d 570 (Fla.

2010); State v. Burgess, 153 So.3d 286 (Fla. 2d DCA 2014).

• Defendant's motion for continuance on a timely filed charge for

misdemeanor battery, after expiration of applicable speedy trial

period for the misdemeanor, resulted in an ongoing waiver of

his speedy trial rights as to all charges arising out of the same

criminal conduct/episode, including a felony charge of lewd

and lascivious conduct that was filed outside of the 175-day

speedy trial period for felonies, even though defendant did not

waive his speedy trial rights until after the speedy trial period

for a felony had expired. State v. Telucien, 225 So. 3d 385

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(Fla. 4

DCA 2017), review denied, No. SC17-1569, 2017 WL

4533797 (Fla. Oct. 11, 2017).

• A waiver of speedy trial applies through the trial phase

including a retrial after mistrial. State v. Templar-O’Brien, 173

So.3d 1129 (Fla. 2d DCA 2015).

10. Misdemeanors tried with Felonies

• Rule 3.191(f) provides that misdemeanors consolidated with

felonies in circuit court for disposition are governed by the

applicable felony speedy trial period.

• However, the state cannot “no file” a misdemeanor after

Defendant files a Notice of Expiration of Time for Speedy Trial

and then re-file it along with felony charges after the

misdemeanor speedy trial period has expired. State v. Grosser,

24 So. 3d 718 (Fla. 2009). This is true even if the charges all

stem from the same conduct.

• When the state nolle prosses a felony case in circuit court and

files it as a misdemeanor in county court, the misdemeanor

speedy trial rule applies and the misdemeanor information must

be filed in county court within the 90 day time period for the

state to be entitled to the recapture rule. State v. Borko, 173

So.3d 1086 (Fla. 2d DCA 2015).

11. What does “being brought to trial” entail?

• All that is required is that the jury venire be sworn. Rule

3.191(c); Moore v. State, 368 So. 2d 1291 (Fla. 1979). A

continuance during the process of the trial is not controlled by

the speedy trial rule. Casmir v. McDonough, 932 So.2d 471

(Fla. 3d DCA 2006). For a non-jury trial, jeopardy commences

when the presentation of evidence begins. State ex rel. Maines

v Baker, 254 So.2d 207 (Fla. 1971); Bernard v. State, 261 So.

2d 133 (Fla. 1972).

• In determining whether speedy trial rule was violated, trial

commenced when prospective jurors were sworn (downstairs in

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jury assembly room) and brought to courtroom for voir dire in a

sexual assault prosecution; although jury panel was

subsequently stricken due to an offensive remark by one of the

prospective jurors, prospective jurors had been seated for voir

dire and questioning had begun for particular case. Smart v.

State, 179 So.3d 477 (Fla. 4

DCA 2015), reh'g denied (Dec.

15, 2015).

12. Filing of Informations and Amended Informations

• The state may not file the initial Information after the speedy

trial period has expired. The State is not entitled to any

recapture period. State v. Williams, 791 So.2d 1088 (Fla.

2001); Ortiz-Lopez v. State, 311 So.3d 319 (Fla. 2d DCA

2020).

• Re-alleged counts in an amended Information, filed after the

expiration of speedy trial, are not subject to dismissal until

expiration of the recapture period. The defendant is not entitled

to automatic discharge. State v. Clifton, 905 So.2d 172 (Fla. 5

DCA 2005).

• If in an amended Information, a new charge is added which was

filed after the expiration of speedy trial; the new charge should

be discharged if all other requirements are met. State v. Clifton,

905 So. 2d 172, 178 (Fla. 5

DCA 2005). State may not amend

Information after speedy trial expires if it charges a new

offense. A “new offense” is one that contains an element that

the originally charged offense did not contain. McDuffie v.

State, 135 So.3d 317 (Fla. 1

DCA 2012).

• However, if the amended Information simply reduces an

existing charge to a necessarily included lesser charge discharge

will not be warranted. Holland v. State, 210 So.3d 238 (Fla.

1st DCA 2017).

13. Same or Separate Criminal Episode

• Distinct acts against different victims constitute separate crimes

for the purpose of the speedy trial rule even though they arise

from the same incident. Walden v. State, 979 So.2d 1206 (Fla.

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DCA 2008) (waiver of speedy trial as to one murder case

has no effect on a murder case involving a different victim).

• For speedy trial purposes, for charged and uncharged crimes to

be the same ‘criminal episode’ they must be based on

substantially the same conduct that gave rise to different

consequences. Crimes can constitute separate criminal episodes

for speedy trial purposes even though they happen at the same

time. Clevenger v. State, 967 So.2d 1039 (Fla. 5

DCA 2007).

• Same criminal episode or conduct looks for its determination to

the actions of the Defendant, not the activities of police. State v.

Baynham, 72 So.3d 796 (Fla. 4

DCA 2011).

• The charge for possession of PVP found not to arise from the

same conduct or criminal episode as a DUI charge, therefore

the waiver of speedy trial in the misdemeanor DUI matter

cannot be attributed to the defendant in the felony possession of

PVP action. State v. Fair, 213 So.3d 1098 (Fla. 4

DCA

2017).

• Crimes can constitute separate criminal episodes for speedy

trial purposes even though they happen at the same time. State

v. Warren, 168 So.3d 337 (Fla. 5

DCA 2015).

14. Speedy Trial Under and After the Pandemic No. AOSC21-17

Amendment 3 (January 8, 2022)

… (8) Speedy Trial in Criminal Court Proceedings. (Footnote 28: This

measure initially went into effect in Fla. Admin. Order No. AOSC20-13 at

the close of business on March 13, 2020, and was subsequently also

addressed in Fla. Admin. Order No. AOSC20-17 and in Fla. Admin. Order

No. AOSC20-23. Footnote 29: As used in Section II.E.(8)a., the term

“taken into custody” has the same meaning as provided in Florida Rule of

Criminal Procedure 3.191(d).)

a. All time periods involving the speedy trial procedure in criminal court

proceedings remain suspended until the close of business on:

i. October 4, 2021, for persons who were taken into custody before March

14, 2020. When the suspension ends and the time periods resume, any time that

accrued under the procedure for a person before the suspension began at the close

of business on March 13, 2020, must be subtracted from the time periods

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provided by the procedure. See, e.g., Sullivan v. State, 913 So. 2d 762 (Fla. 5th

DCA 2005), and State v. Hernandez, 617 So. 2d 1103 (Fla. 3rd DCA 1993).

ii. January 3, 2022, for persons who were taken into custody on or after

March 14, 2020.

The Speedy Trial Count Cheat Sheet

Persons taken into Custody before March 14, 2020

• Time accrued prior to close of business day on March 13,

2020.

• Time commences counting after the close of business day on

October 4, 2021.

Persons Taken into Custody after March 14, 2020

• Time commences counting the close of business day January 3,

2022.

i. The 10-day time period in Florida Rule of Criminal Procedure 3.191(p)(3) is

increased to 30 days; and

ii. ii. Florida Rule of Criminal Procedure 3.191(l) is modified to authorize a

court to order an extension of the time periods provided under the rule

for the following exceptional circumstances: general congestion of the

court’s docket, a lack of courtroom space, an unavailability of jurors, or a

personnel shortage for public defenders, state attorneys, clerks of court,

or the courts.

•

Speedy Trial in Juvenile Court Proceedings.

All time periods involving the speedy trial procedure in juvenile court

proceedings remain suspended until the close of business on October 4,

2021. When the suspension ends and the time periods resume, any time

that accrued under the procedure for a juvenile before the suspension

began at the close of business on March 13, 2020, must be subtracted from

the time periods provided by the procedure. See, e.g., Sullivan v. State,

913 So. 2d 762 (Fla. 5th DCA 2005), and State v. Hernandez, 617 So. 2d

1103 (Fla. 3rd DCA 1993).

• This Administrative Order made in response to the COVID-19

pandemic has been found to suspend ALL time periods

involving speedy trial, not only the time in which the State is

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required to try the Defendant. It also includes the time within

which the State has to file charges. Smith v. State, 310 So.3d

1101 (Fla. 1

DCA 2020); State v. Emmanuel, 323 So.3d 188

(Fla. 4

DCA 2021); Francois v. State, 317 So.3d 1268 (Fla. 3d

DCA 2021).

• The administrative order made in the wake of Hurricane Dorian

required suspension of speedy trial from August 29, 2019 until

the close of business September 4, 2019 thus requiring the

addition of 6 days. State v. Lowery, 319 So.2d 118 (Fla. 3d

DCA 2021). See other administrator order other hurricanes,

tropical storms, etc.

CONSTITUTIONAL RIGHT TO SPEEDY TRIAL

Sixth Amendment, United States Constitution:

“In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and district

wherein the crime shall have been committed, which district shall

have been previously ascertained by law, and to be informed of the

nature and cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of Counsel for his

defence.”

In determining whether a defendant's constitutional right to a speedy

trial has been violated, the court should consider four factors: (1) the length

of the delay, (2) the reason for the delay, (3) the defendant's assertion of his

right, and (4) the prejudice to the defendant; (5) any other relevant factor.

Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

The constitutional speedy trial period is measured in tests of

reasonableness and+ prejudice, not specific numbers of days. Blackstock v.

Newman, 461 So.2d 1021, 1022 (Fla. 3d DCA 1985); Gamble v. State, 996

So.2d 946, 947 (Fla. 2d DCA 2008); Lozano v. State, 202 So.3d 148 (Fla.

2d DCA 2016).

The first factor acts as a triggering mechanism; if the delay is not so

long as to be presumptively prejudicial against the defendant, then the court

2023 - FJC II - Speedy Trial

need not even consider the remaining factors. Murphy v. State, 351 So.3d

242 (Fla. 2d DCA 2022)(

The right to speedy trial provided in rule 3.191 is

not coextensive with the broader constitutional right to a speedy trial....

Florida's speedy trial rule is a procedural protection and, except for the

right to due process under the rule, does not reach constitutional dimension.

As opposed to the right provided in the rule, ‘[t]he constitutional speedy

trial period is measured by tests of reasonableness and prejudice, not

specific numbers of days); State v. Stuart, 115 So.3d 420, 424 (Fla. 2d

DCA 2013). For the first factor, the right to speedy trial attaches “at the time

of arrest or indictment, whichever comes first.” Howell v. State, 418 So.2d

1164, 1167 (Fla. 1st DCA 1982). A delay of 13 ½ months is presumptively

prejudicial, a finding of a 10 ½ month delay is not. Jacobs v. State, 152

So.3d 822 (Fla. 2d DCA 2014).

The second factor requires an evaluation of the reason for the State’s

delay in determining whether it was deliberate, negligent, or justified. The

burden to explain the delay rests with the State. Id. The more egregious the

reason for the delay, the lesser degree of prejudice the defendant is required

to show. Id.; Seymour v. State, 738 So.2d 984, 986 (Fla. 2d DCA 1999)

(held that prejudice to the defendant need not be demonstrated where the

first three factors weigh heavily in favor of the defendant).