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.