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.
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
vs. Case No: 51-2004-CA-2769-WS
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.
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. . . . " 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."
Therefore, it is,
ORDERED AND ADJUDGED that the Petition for Writ of Prohibition is GRANTED.
AND ORDERED in Chambers, at New Port Richey,
Primary Appellate Judge
Daniel D. Diskey
Copies furnished to:
Office of the Public Defender
Office of the State Attorney
 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. . . . "