County
Criminal Court: CRIMINAL PROCEDURE
– speedy trial – State entitled to 15-day recapture period –trial court did
not err in denying defendant’s motion to dismiss –defendant had the ability
to move for a speedy trial discharge within a short period of time after the
expiration of the 90-day speedy trial period for a misdemeanor charge – State
brought defendant to trial within 15 days from the notice of expiration --
Order affirmed.
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL
CIRCUIT
IN AND
APPELLATE DIVISION
KAREN EILEEN WALKER,
Appellant,
vs.
Appeal No. CRC 03-00005 CFANO
UCN522003MM00005XXXXNO
STATE OF
Appellee.
____________________________________/
Opinion filed ________________________
Appeal from Order Denying
Defendant’s Motion to Dismiss
Judge Thomas Freeman
Haydee C. Oropesa, Esquire
Attorney for Appellant
C. Marie King, Esquire
Attorney for Appellee
THIS CAUSE came before the Court
on appeal, filed by the defendant, Karen Eileen Walker (
The
sole issue on appeal is whether the trial court erred in denying
The
following facts are undisputed. On
September 6, 2002,
The Court finds no error in the trial court’s ruling. Cases addressing this issue have concluded that the defendant need not be arraigned before the speedy trial period runs in order for the state to have the advantage of the recapture period. See A.L. v. State, 787 So.2d 942, 944 (Fla. 4th DCA 2001)(analyzing the juvenile and adult speedy trial rules and concluding that both rules do not require that the defendant be arraigned before the speedy trial period runs for the state to have the benefit of the recapture period). Additionally, it is clear that the right to a speedy trial is a procedural right, not a substantive right and the failure to try a defendant within a specified period of time “does not per se prejudice the accused’s ability to defend himself.” See id. (citing Barker v. Wingo, 407 So.2d 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)).
Further,
Rule 3.191(p) is a “triggering mechanism” intended to provide the state with
a “window of recapture” to allow it additional time to bring a defendant to
trial. See id.; see also
State v. Demars, 848 So.2d 436 (Fla. 4th DCA 2003)(emphasizing the
importance of the defendant filing a notice of expiration to trigger the recapture
period under the speedy trial rule and reversing the trial court’s discharge
that was granted some 213 days from the original misdemeanor arrest). Unlike several cases wherein the defendants
had been arrested on charges which were subsequently dismissed, and the state
refiled the charges without immediately notifying the defendants, Walker was
aware of the charges pending against her and was not deprived of her opportunity
to timely assert her speedy trial rights.
See A.L., 787 So.2d at 944 (analyzing the Morris, Gantt,
and Cordero cases and explaining that the recapture period was
not available to the State where its actions had served to deprive the defendant
of the opportunity to timely assert his speedy trial rights)(citations omitted);
see also State v. D.L., 841 So.2d 663, 664 (Fla. 4th DCA 2003)(same);
D.D. v. State, 817 So.2d 930 (Fla. 4th DCA 2002)(holding that the State
was not entitled to the recapture period when the juvenile did not receive
notice of the charges until two months after the speedy trial period had expired,
and was not appointed counsel until one month after that). Accordingly, since
Therefore, it is,
ORDERED
AND ADJUDGED that Order Denying the Defendant’s Motion to Dismiss is hereby
affirmed.
DONE AND
ORDERED in Chambers, at
___________________________________
ROBERT J. MORRIS, JR.
Circuit Judge
___________________________________
IRENE SULLIVAN
Circuit Judge
___________________________________
DAVID A. DEMERS
Circuit Judge
Copies furnished to:
Judge Thomas Freeman
Haydee C. Oropesa, Esquire
Assistant Public Defender
C. Marie King, Esquire
Assistant State Attorney
[1] The trial court’s Order was entered after the Notice of Appeal was filed, on January 16, 2003, pursuant to this Court’s Order Relinquishing Jurisdiction for the Entry of a Written Order, entered July 24, 2003.