County Criminal Court: CRIMINAL PROCEDURE Ė Speedy Trial Ė Defendantís request to continue initial hearing to get more time to learn facts about possible waiver of speedy trial extended or tolled recapture period until initial hearing completed. Order of discharge reversed. State v. Barnes, No. CRC 04-49 APANO, (Fla. 6th Cir.App.Ct. May 20, 2005).








††††††††††† Appellant,


Appeal No. CRC 04-00049 APANO




††††††††††† Appellee.




Opinion filed _______________.


Appeal from a decision of

the Pinellas County Court

County Judge Karl Grube


Gregory Groger, Esq.

Assistant State Attorney


Peter D. Andrews, Esq.

Attorney for appellee




††††††††††† (J. Demers)


††††††††††† THIS MATTER is before the Court on the Stateís appeal from a decision of the Pinellas County Court granting the defendantís motion for discharge. After reviewing the briefs and record, this Court reverses the order of discharge.

††††††††††† There was a factual dispute in the trial court about whether or not there was a waiver of speedy trial. The trial court resolved this factual issue in favor of the defendant, finding that there was no waiver. This decision is within the discretion of the court, and this Court will not disturb that finding, as there is support for it in the record.

††††††††††† A review of the record, however, reveals that while the factual issue was being resolved, the defendant made a motion to continue. This was done so that more information could be found to resolve the factual dispute. Some time later, once the factual dispute was finally resolved with the trial courtís finding that there was not a waiver, the defendant immediately moved for discharge, claiming he had not been brought to trial within 10 days from the first hearing. The trial court granted the defendantís motion and entered an order of discharge.

On appeal the State argues that the recapture provision of Fla. R. Crim. P. 3.191(p) should have begun only after the waiver issue was resolved. The Stateís position is persuasive.

†††††††††† Fla. R. Crim. P. 3.191(p)(3) provides that the remedy for failure to try a defendant within the specified time is to have a hearing within 5 days from the date of the filing of the notice of expiration of speedy trial. At that hearing the court is to determine if there are grounds --- such as the defendant having waived his right to speedy trial --- for not granting a discharge. If there are not, then the court will order the State to bring the defendant to trial within 10 days or the defendant, upon motion, will be discharged. This is known as the recapture period.

††††††††††† The trial court properly gave the defendant a hearing within 5 days of his notice of expiration of speedy trial. That hearing, however, was not completed that same day. The defendant requested a continuance in order to get more information to see if there was a waiver of speedy trial. The hearing was ultimately concluded a month later. The defendantís motion for a continuance extended or tolled the recapture period. Under the circumstances of this case, the State was entitled to believe that the defendantís request to continue the first hearing meant that the defendant was not prepared to go to trial until the resolution of the first hearing.Indeed, there would be no point in going to trial within 10 days if the first hearing to determine if there were grounds for not granting the discharge was not yet completed. To rule otherwise would deprive the State of its recapture period. The recapture period may be extended. See Brown v. State, 715 So.2d 241 (Fla. 1998). This Court holds that because the defendant requested a continuance of the first hearing, the portion of the recapture period that provides a defendant must be brought to trial within 10 days from the date of the first hearing only began to run once the first hearing was ultimately completed. The trial court erred in discharging the defendant.

Moreover, even if the recapture period were not extended or tolled in this case, the defendant is not entitled to discharge. The defendantís act of asking for a continuance was the equivalent of being unavailable for trial. See State v. Naveira, 873 So.2d 300 (Fla. 2004); State v. Gilliam, 884 So.2d 128 (Fla. 2d DCA 2004). If a defendant is unavailable for trial, then he is not entitled to discharge. In both the Naveira and the Gilliam cases, the defendant requested a continuance during the recapture period. In both of those cases, the courts ruled that the defendantís act of requesting a continuance demonstrated he was unavailable for trial, and therefore not entitled to be discharged.

††††††††††† IT IS THEREFORE ORDERED that the order of discharge is reversed, and this

matter is remanded to the trial court for action consistent with this Order and Opinion.

††††††††††† DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this ____ day of May, 2005.





††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† _______________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† David A. Demers

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge




††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Robert J. Morris, Jr.

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge





††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† _______________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Irene S. Sullivan

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge


cc:†† State Attorney


††††††† Peter Andrews, Esq.


††††††† Judge Grube