Butterworth In and For Broward County v. Fluellen

Decision Date24 July 1980
Docket NumberNo. 57385,57385
Citation389 So.2d 968
PartiesHonorable Robert A. BUTTERWORTH, as Judge of the Circuit Court of the 17th Judicial Circuit, IN AND FOR BROWARD COUNTY, Florida, Petitioner, v. Rosa Lee FLUELLEN, Respondent.
CourtFlorida Supreme Court

Jim Smith, Atty. Gen., and Benedict P. Kuehne and Paul H. Zacks, Asst. Attys. Gen., West Palm Beach, for petitioner.

Alan H. Schreiber, Public Defender, and Channing E. Brackey, Asst. Public Defender, Fort Lauderdale, for respondent.

OVERTON, Justice.

The Fourth District Court of Appeal, in Fluellen v. Butterworth, 372 So.2d 943, 944 (Fla. 4th DCA 1979), certified the following questions to be of great public interest:

1. What is the applicability of Fla.R.Crim.P. 3.191(d)(3) in a situation where (a) a defendant is granted a continuance, (b) the State is then granted a continuance, (c) the original Speedy Trial Rule time (180 days) passes, and (d) ninety days elapse from the State's continuance without any intervening defense continuances or delays?

2. When the Speedy Trial Rule time limitations are waived by virtue of a defense continuance, under what circumstances, if any, are any specific time periods of the Speedy Trial Rule, Fla.R.Crim.P. 3.191, reactivated absent any demand by the defendant?

We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

For the reasons expressed, we find the ninety-day provision of existing Rule of Criminal Procedure 3.191(d)(3) 1 does not apply when the state is granted a continuance after a prior continuance has been granted to the defendant. We quash the writ of prohibition issued by the district court and remand for further proceedings consistent with this opinion.

The relevant facts in the instant case reflect that on October 23, 1977, the respondent was taken into custody for the murder of John Alford. The respondent moved for and was granted for continuance on March 9, 1978. On May 30, 1978, the state was granted a continuance and subsequently obtained two further continuances. On September 5, 1978, the respondent filed a motion for discharge which was denied October 18, 1978. Respondent then filed a petition for writ of prohibition in the Fourth District Court of Appeal, which was granted. The district court found that the defendant was entitled to a discharge because the state failed to bring her to trial within the ninety-day period set forth in Rule of Criminal Procedure 3.191(d)(3). The district court also cited its prior decision in State v. Reese, 359 So.2d 33, 34 (Fla. 4th DCA 1978), cert. denied, 365 So.2d 715 (Fla.1978), in which it stated:

(I)n the event of a State continuance, whether or not it follows an earlier defense continuance, the basic constitutional time limit, for the commencement of trial, is no more than 90 days after any State continuance, which is uninterrupted by any further defense motions for continuance or waivers, PROVIDING that the requisite 180 days has also run under Fla.R.Crim.P. 3.191(a) (1).

372 So.2d at 943.

The issue in this cause is whether a continuance by the state starts a new ninety-day time period within which the defendant must be brought to trial in accordance with the existing Rule of Criminal Procedure 3.191(d)(3), which reads as follows:

If trial of the accused does not commence within the periods of time established by this rule, a pending motion for discharge shall be granted by the court unless it is shown that (i) a time extension has been ordered as provided in § (d)(2), or (ii) the failure to hold trial is due to the unexcused actions or unexcused decisions of the accused, or of a co-defendant in the same trial. If a continuance or delay is attributable to the accused and is not excused, the pending motion for discharge shall on motion by the State be voidable by the court in the interests of justice; provided, however, trial shall be scheduled and commence within 90 days.

We expressly hold that the ninety-day provision in rule 3.191(d)(3) is applicable only after a "pending motion for discharge" has been denied by the court on the grounds of a continuance or delay attributable to the accused. We reject the contention that this ninety-day provision is applicable whenever the state seeks a continuance. Such was not the intent of the rule, and we recede from the implication in Negron v. State, 306 So.2d 104 (Fla.1974), that this ninety-day provision applied to any continuance by the state. We note that this Court in Negron found that the defendant was entitled to a discharge because the 100-day delay after the state continuance was found to be unreasonable on constitutional grounds.

In State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971), this Court held that when a defendant moves for and is granted a continuance, the 180-day limitation set forth in Rule of Criminal Procedure 3.191(a)(1) is no longer applicable. The defendant, however, is still entitled to a speedy trial. The appropriate standard for the trial court to consider in safeguarding this right to speedy trial was set forth by Justice Adkins in Cullen :

When the continuance was granted and the time limitations set forth in the rule were no longer applicable, the trial judge was nevertheless required to grant petitioners a speedy trial. In the absence of the time limitations specified in the Speedy Trial rule, the right to a speedy trial is...

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  • Marrero v. State
    • United States
    • United States State Supreme Court of Florida
    • September 15, 2011
    ...82 Fla. 282, 89 So. 808 (1921), and Negron v. State, 306 So.2d 104 (Fla.1974), receded from on other grounds by Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980), which hold that essential elements of a crime must be proven beyond a reasonable doubt and cannot be left to inference or conjec......
  • Akins v. State, 83-743
    • United States
    • Court of Appeal of Florida (US)
    • December 6, 1984
    ...amend. V; Art. I, § 9, Fla. Const.15 See, e.g., Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980); Fulk v. State, 417 So.2d 1121 (Fla. 5th DCA 1982); State v. Moss, 395 So.2d 561 (Fla. 5th DCA 1981).16 See, e.g., West v. S......
  • Marrero v. State
    • United States
    • United States State Supreme Court of Florida
    • May 5, 2011
    ...v. State, 89 So. 808 (Fla. 1921), andNegron v. State, 306 So. 2d 104 (Fla. 1974), receded from on other grounds by Butterworth v. Fluellen, 359 So. 2d 968 (Fla. 1980), which hold that essential elements of a crime must be proven beyond a reasonable doubt and cannot be left to inference or c......
  • Jasso v. State, 91-KA-01161-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • April 13, 1995
    ...state has held that a defendant does not waive his entire right to a speedy trial by asking for one continuance. Butterworth v. Fluellen, 389 So.2d 968, 970 (Fla.1980). But see State v. Brown, 249 Kan. 698, 823 P.2d 190, 194 (1991) (continuances waive speedy trial rights granted by Kansas s......
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