Dabkowski v. State, 97-917

Decision Date08 May 1998
Docket NumberNo. 97-917,97-917
Citation711 So.2d 1219
Parties23 Fla. L. Weekly D1152 Edward Albert DABKOWSKI, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

James B. Gibson, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, and Lori E. Nelson, Assistant Attorney General, Daytona Beach, for Appellee.

W. SHARP, Judge.

Dabkowski appeals his judgment and sentence for robbery with a deadly weapon. 1 The primary issue on appeal is whether the trial court erred in not granting Dabkowski's motion to dismiss and motion for discharge for violation of his speedy trial rights. We affirm, relying on Clark v. State, 698 So.2d 1274 (Fla. 3d DCA 1997).

In Clark, Judge Schwartz ruled in a similar case that a defendant who filed a motion for discharge rather than a notice of expiration of speedy trial time as provided by Florida Rule of Criminal Procedure 3.191(h) (p)(2), (3), was not entitled to dismissal of the criminal charges pending against him. Judge Schwartz reasoned that the notice is designed to alert the clerk and the prosecution that the case must immediately be brought to the attention of the court by placing it on its calendar:

[W]ithin a day or two so that the recapture period may be complied with.... On the other hand, since a "motion to discharge" may not be granted unless it is well taken when filed, ... there is no necessity for scheduling it at any particular time.

Clark, 698 So.2d at 1275.

Dabkowski attempts to distinguish this case from Clark on the ground that the court ordered the state to file a response to the motion for discharge within five days. Eighteen days later, the state filed a response and a hearing was held on the matter, within two days.

We do not think these circumstances constituted a recognition by the trial court that Dabkowski had filed a notice of expiration of speedy trial time. Had the court viewed this pleading as a notice of expiration, it would have set a hearing immediately rather than ordering a quick response. Had it done so, conceivably, the fifteen day time limit to bring Dabkowski to trial required by rule 3.191 could have been complied with. We agree with Judge Schwartz that a defendant is not entitled to a "speedy dismissal," but only to a "speedy trial." Having failed to ask for that remedy, Dabkowski is not entitled to it.

AFFIRMED.

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5 cases
  • State v. Gibson, 5D00-702.
    • United States
    • Florida District Court of Appeals
    • April 12, 2001
    ...procedures because a Motion for Discharge is not synonymous with a Notice of Expiration under rule 3.191(h). See Dabkowski v. State, 711 So.2d 1219 (Fla. 5th DCA 1998) (holding that a defendant who filed a motion for discharge rather than a notice of expiration was not entitled to dismissal......
  • Greene v. State
    • United States
    • Florida District Court of Appeals
    • July 28, 2017
    ...See Borroto v. State, 19 So. 3d 411 (Fla. 5th DCA 2009); Richardson v. State, 918 So. 2d 999 (Fla. 5th DCA 2006); Dabkowski v. State, 711 So. 2d 1219 (Fla. 5th DCA 1998); Sequoia v. State, 678 So. 2d 493 (Fla. 4th DCA 1996).KELLY, PATRICIA J., MORRIS, ROBERT, and ROTHSTEIN-YOUAKIM, SUSAN H.......
  • Sterling v. State, 98-1866.
    • United States
    • Florida District Court of Appeals
    • March 12, 1999
    ...of speedy trial as required by Florida Rule of Criminal Procedure 3.191(h), he is not entitled to discharge. See Dabkowski v. State, 711 So.2d 1219 (Fla. 5th DCA 1998) and Clark v. State, 698 So.2d 1274 (Fla. 3d DCA 1997). In addition, this court has held that prohibition is not an appropri......
  • Dabkowski v. State
    • United States
    • Florida Supreme Court
    • November 4, 1998
  • Request a trial to view additional results
1 books & journal articles
  • Speedy trial, speedy games.
    • United States
    • Florida Bar Journal Vol. 76 No. 11, December 2002
    • December 1, 2002
    ...the prosecution and the court into depriving [the defendant] of rights which he did not properly assert." (12) In Dabkowski v. State, 711 So. 2d 1219, 1220 (Fla. 5th DCA 1998), the Fifth District noted that the a defendant "is not entitled to a 'speedy dismissal,' but only to a 'speedy tria......

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