County Criminal Court: CRIMINAL PROCEDURE speedy trial while it is true that the trial court agreed with the state, finding that the closing of the courthouse on two separate occasions due to hurricanes is an exceptional circumstance that would extend speedy trial; such an extension was not sought prior to expiration of speedy trial as is required by Florida Rule of Criminal Procedure 3.191(i)- the only time the state moved for a continuance due to exceptional circumstances was six days after speedy trial had run. Petition for Writ of Prohibition granted. Taylor v. State, No: 51-2004-CA-2769WS (Fla. 6th Cir. App. Ct. December 21, 2004).

 

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PASCO COUNTY

 

 

CHRISTOPHER TAYLOR,

Appellant

vs. Case No: 51-2004-CA-2769-WS

 

STATE OF FLORIDA,

Appellee.

___________________/

 

ORDER GRANTING PETITION FOR WRIT OF PROHIBITION

THIS CAUSE came before the Court on the Petition for Writ of Prohibition, the Response to the Petition and the Reply to the Response. Upon consideration of the same, the record, and being otherwise fully advised, the Court finds that the Petition must be granted as set forth below.

Defendant was arrested on June 6, 2004 for a misdemeanor. Speedy trial was set to expire September 4. At the first pretrial on August 11, 2004, the court set the trial for September 13, 2004; beyond the 90 day speedy trial period but within the 15 day recapture period. On September 7, 2004, the defense filed a Notice of Expiration of Speedy Trial, placing the last day of the 15 day recapture window on September 22, 2004. The court was closed on September 13, 2004, due to Hurricane Ivan. On September 20, 2004, the case was set on the next trial calendar, which was September 27, 2004. On September 22, defendant filed a Notice of Discharge since the 15 days had elapsed, and set the hearing for the same date as the trial, September 27, 2004. On September 27, 2004, the court was closed due to Hurricane Jeanne. On September 28, the court discussed what to do with the trials set for the day before. Neither the defendant nor his attorney were present in court on September 28,2004. The court waited for defense counsel to arrive and when he did not, the court made the decision to continue the case until the next available trial date, October 11, 2004. On September 30, 2004, the Florida Supreme Court issued an Administrative Order tolling speedy trial time from 5:00 pm Friday, September 10 through 8:00 am on Friday, September 17, 2004. On October 7, 2004, the court heard the defendant's motion for discharge. The motion was denied. On October 12, 2004, the Florida Supreme Court issued an Administrative Order tolling speedy trial time from 5:00 pm Friday, September 24 through 8:00 am on Tuesday September 28, 2004. Petitioner now seeks to bar the state from prosecution and dismiss this case pursuant to Florida Rule of Criminal Procedure 3.191.

Florida's speedy trial rule is embodied in Florida Rule of Criminal Procedure 3.191. Subsection (p) permits the accused to file a notice of expiration of speedy trial time. The trial court must then hold a hearing within five days and order the accused brought to trial within ten days unless the court finds that one of the reasons set forth in subsection (j) exists. Under subsection (j) the court does not have to order an accused be brought to trial within ten days if the court has previously ordered an extension that has not yet expired, the delay in holding the trial has been caused by the accused, co-defendant or their counsel, the accused was unavailable for trial, or the demand for speedy trial is invalid. Assuming none of these circumstances exist, the trial court must order the accused brought to trial within ten days. If not brought to trial within this period, the accused is entitled to be discharged upon appropriate motion provided the delay is not attributable to the accused. See Fla. R.Crim. P. 3.191(p).

As the state correctly notes, the rule also permits an extension of speedy trial time where the court finds exceptional circumstances. Specifically, Florida Rule of Criminal Procedure 3.191(l) provides " [a]s permitted by subdivision (i) of this rule, the court may order an extension of the time periods provided under this rule when exceptional circumstances are shown to exist. . . . "[1] Pursuant to this rule, exceptional circumstances include ". . . a showing by the accused or the state of necessity for delay grounded on developments that could not have been anticipated and that materially will affect the trial." Fla. R. Crim.P. 3.191(l)(4). While it is true that the trial court agreed with the state, finding that the closing of the courthouse on two separate occasions due to hurricanes is an exceptional circumstance that would extend speedy trial; such an extension was not sought prior to expiration of speedy trial as is required by Florida Rule of Criminal Procedure 3.191(i). Brown v. State,  715 So.2d 241, 243 (Fla.,1998)(rule which allows extension of time periods established by speedy trial rule, permits the state to move for extension of the speedy trial period or five/ten-day recapture window for bringing defendant to trial, so long as time period sought to be extended has not expired at time extension is requested). In this case, speedy trial expired on October 1, 2004. The only time the state moved for a continuance due to exceptional circumstances was on October 7, 2004, at the defendant's Motion to Discharge Hearing. That was six days after speedy trial had run.

 

Therefore, it is,

ORDERED AND ADJUDGED that the Petition for Writ of Prohibition is GRANTED.

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this ________ day of December, 2004.

 

 

________________________

W. Lowell Bray, Circuit Judge

Primary Appellate Judge

 

_____________________

Daniel D. Diskey

Circuit Judge

 

______________________

Stanley R. Mills

Circuit Judge

Copies furnished to:

Office of the Public Defender

Office of the State Attorney



[1] Subdivision (i) states "[t]he periods of time established by this rule may be extended, provided the period of time sought to be extended has not expired at the time the extension was procured. . . . "