County Criminal Court: CRIMINAL PROCEDURE – Speedy Trial – Defendant entitled to discharge when trial scheduled outside of recapture period and proper steps taken pursuant to Rule 3.191.  Denial of motion for discharge reversed. Pateiro v. State, No. CRC0706934CFAWS (Fla. 6th Cir.App.Ct. March 8, 2010).

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

JASON LOUIS PATEIRO,     

                        Appellant,

                                                                        UCN:              512007CF006934A000WS

v.                                                                     Appeal No:   CRC07-06934-CFAWS

                                                                        Lower No:    07-4273XDMTWS

 

STATE OF FLORIDA,                                           

                        Appellee.                                                      

___________________________/

 

Appeal from Pasco County Court

 

County Judge Candy Vandercar

 

Peter A. Sartes, Esq.

for Appellant

 

Office of the State Attorney

for Appellee

 

 

 

ORDER AND OPINION

 

            Appellant appeals the denial of his Motion for Discharge for expiration of speedy trial time.  Pursuant to Florida Rule of Criminal Procedure 3.191, Appellant’s motion should have been granted.  Therefore, we reverse as set forth below.

            On July 27, 2007, Appellant was arrested for Driving Under the Influence.  According to Florida Rule of Criminal Procedure 3.191(a), Appellant needed to have been brought to trial within 90 days after his arrest.  On October 31, 2007, after the

expiration of speedy trial time had passed, Appellant appropriately filed a Notice of Expiration of Speedy Trial.  A hearing was properly held within the prescribed five days, on November 6, 2007.  At that hearing, the trial court scheduled the trial for November 19, 2007, which was outside the prescribed ten days from the hearing, pursuant to Florida Rule of Criminal Procedure 3.191(p).

            A calendar call was held on November 15, 2007 (the last day within the statutory period) to determine whether Appellant’s case was continuing to trial.  The Assistant State Attorney stated that he may not be ready for trial until Tuesday, November 20, 2007.  The trial court responded that this case was a priority because a Notice of Expiration of Speedy Trial was filed and announced that the trial would have to start on Monday.  Unbeknownst to the Assistant State Attorney or the trial court, the scheduled trial date was outside the speedy trial period.  Defense counsel made no comments about the proposed trial date.  The next day, when the speedy trial period had expired, Appellant filed a Motion for Discharge.  After the trial court denied the motion, Appellant pleaded no contest, but maintained the speedy trial issue for appeal.

            The trial court should have granted Appellant’s Motion for Discharge based on the expiration of the speedy trial period.  On October 31, 2007, after Appellant had not been brought to trial within ninety days, Appellant appropriately filed a Notice of Discharge following Florida Rule of Criminal Procedure 3.191(h).  The trial court properly held a hearing within five days, on November 6, 2007, as prescribed by Florida Rule of Criminal Procedure 3.191(p)(3).  Appellant’s trial needed to have commenced by November 15, 2007.  A calendar call was held that day, but the trial did not begin, as it was not scheduled until November 19, 2007 (days after the expiration of the recapture period).  Therefore, Appellant’s Motion for Discharge should have been granted.

            This Court is cognizant that there are exceptions to the Speedy Trial Rule; however, none of the exceptions applied in this case.  Rule 3.191(j) indicates that the trial court could deny a motion for discharge if it was shown that (1) an extension of time had been granted for exceptional circumstances, as outlined in subdivision (i); (2) the failure to hold the trial was attributable to the accused or their counsel; (3) the accused was unavailable for trial under subdivision (k); or (4) the demand under subdivision (g) was invalid.  None of these were before the trial court.

            The State could have arguably attempted to obtain an extension of time based on exceptional circumstances under subdivision (l)(3), in that it had made diligent effort to secure the FDLE expert’s testimony, but the witness was unavailable within the time constraints.  The State, however, only mentioned this issue, after the recapture period had passed.  Had the State moved for an extension one day earlier, the trial period could have reasonably been extended under Rule 3.191(i).  State v. Salzero, 714 So. 2d 445 (Fla. 1998); State v. J.G., 807 So. 2d 748 (Fla. 4th DCA 2002).  Since the State did not make such a motion, the trial court was obligated to discharge Appellant.

            Although the State failed to try Appellant within ninety days of his DUI arrest, the State could have nonetheless avoided Appellant being discharge of the crime by starting his trial within the fifteen day recapture period.  In addition, the State missed its opportunity to move for an extension of the recapture period.  Any delay was not attributable to Appellant, and there is no evidence that Appellant affirmatively misled the trial court.  Appellant’s motion for discharge should have been granted.  Therefore, it is 

 

ORDERED AND ADJUDGED that the Order Denying Appellant’s Motion for Discharge is REVERSED, and this case is DISMISSED.

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 8th day of March 2010.

 

Original order entered on March 8, 2010 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.