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.  Walker v. State, No. 03-00005 APANO (Fla. 6th Cir. App. Ct. Jan. 23, 2004). 










vs.                                                                                            Appeal No. CRC 03-00005 CFANO






Opinion filed ________________________


Appeal from Order Denying

Defendant’s Motion to Dismiss

Pinellas County Court

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 (Walker), from the Order Denying the Defendant’s Motion to Dismiss, entered August 8, 2003. [1]   Upon review of the briefs, the record and being otherwise fully advised, the Court affirms the Order as set forth below.

The sole issue on appeal is whether the trial court erred in denying Walker’s Motion to Dismiss and finding that the state was entitled to the 15-day recapture period when Walker was not arraigned or appointed counsel until after the expiration of the speedy trial period.  See Fla. R. Crim. P. Rule 3.191(a)(providing that a person charged with a misdemeanor shall be brought to trial within 90 days of the crime charged).  As the issue is a pure question of law, the standard of review is de novo.  See State v. Glatzmayer, 789 So.2d 297, 301 (Fla. 2001)(setting forth the standards of review of a trial court’s rulings in general). 

The following facts are undisputed.  On September 6, 2002, Walker was arrested for possession of marijuana.  On November 19, 2002, the State Attorney’s office filed an information formally charging Walker.  Two notices of arraignment were issued:  the first, on November 20, 2002, with an arraignment date of December 16, 2002, and the second, on December 10, 2002, with an arraignment date of December 13, 2002.  The record does not indicate when Walker exactly received notice.  Speedy trial expired on December 5, 2002.  Walker did not appear for arraignment on December 13, 2002, but did appear for arraignment on December 16, 2002, at which time she was appointed a Public Defender.  On the same date, the Public Defender filed a notice of expiration of speedy trial and the case was set for trial on December 19, 2002.  Walker’s Motion to Dismiss was heard and denied on December 19, 2002, after which Walker entered a plea of no contest.

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 Walker had the ability to move for a speedy trial discharge within a short period after the expiration of the 90-day period, and the State brought Walker to trial within 15 days from the notice of expiration, the trial court did not err in denying Walker’s Motion to Dismiss.  





Therefore, it is, 

            ORDERED AND ADJUDGED that Order Denying the Defendant’s Motion to Dismiss is hereby affirmed.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of January 2004.





                                                                        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.