Eire v. Kaney, 80-1094
| Decision Date | 11 February 1981 |
| Docket Number | No. 80-1094,80-1094 |
| Citation | 393 So.2d 649 |
| Parties | Richard EIRE, Petitioner, v. The Honorable Frank N. KANEY, Circuit Judge, Ninth Judicial Circuit of Florida, Respondent. |
| Court | Florida District Court of Appeals |
J. Cheney Mason, Orlando, for petitioner.
Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Daytona Beach, for respondent.
For the second time Eire petitions this court to bar his prosecution for first degree murder and require his discharge because the time limits set by Florida Rule of Criminal Procedure 3.191 have run. We find that the time periods have not run in this case, and we deny the petition.
A summary of the proceedings involving the murder charge against Eire is as follows:
November 8, 1979 -- Eire was arrested on first degree
murder charge--trial was set for
the week of April 14, 1980, and
was reset day by day
April 29, 1980 -- Petitioner sought a continuance to
prepare for trial when public
defender withdrew and present
counsel was appointed. Court
granted a continuance, "charged" to
petitioner, and reset the trial for
June 23, 1980
May 9, 1980 -- Petitioner filed a motion for
discharge; trial court denied it
Petitioner said he would seek a
writ of prohibition to this court
and the trial court postponed the
trial
May 21, 1980 -- Petitioner filed a petition for writ
of prohibition in this court.
July 15, 1980 -- This court found no merit in the
petition even after reviewing
portions of the record sua sponte;
and it denied the petition without
requiring a response from the state.
August 25, 1980 -- Petitioner filed a motion for
discharge claiming more than 90 days
had expired since his prior motion
for discharge was denied. Fla.R.
Crim.Proc. 3.191(d)(3).
September 15, 1980 -- Trial court denied second motion
for discharge.
September 18, 1980 -- Eire again sought a Writ of
Prohibition and this court issued
a show cause order.
Florida Rule of Criminal Procedure 3.191(a)(1) requires that a person charged with a felony be brought to trial within 180 days of his arrest, provided he has been "continuously available for trial during such period of time ...." It is well established, however, that if a defendant seeks a continuance or a continuance is required because of circumstances "chargeable" to the defendant, the 180 day time limit of the rule is waived and it no longer applies. State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971); State v. Register, 380 So.2d 543 (Fla. 5th DCA 1980); State v. DiSimone, 386 So.2d 283 (Fla. 4th DCA 1980). Here Eire sought a continuance and it was charged to him. Thus the 180 day rule is not applicable to him.
Rule 3.191(d)(3) provides that if a continuance chargeable to the defendant is obtained, and the speedy trial time runs out, and the defendant files a motion for discharge which is properly denied, the "trial shall be scheduled and commence within 90 days." Homer v. State, 358 So.2d 1176 (Fla. 3d DCA), cert. denied, 364 So.2d 886 (Fla.1978). In State v. Bufford, 383 So.2d 928 (Fla. 5th DCA 1980) we held that a defendant who "waived" the 180 day time span can "reactivate" the 90 day rule of 3.191(d)(3) by filing a motion for discharge, and under this rule the defendant must be tried within 90 days of the time he filed the motion for discharge.
Eire was not brought to trial within 90 days following his motion dated May 9, 1980. The reason he was not tried on June 23, 1980, as he otherwise would have been, was because he elected to seek review of the trial court's denial of his motion through filing a petition for writ of prohibition. 1 Because of his stated intent to seek a writ of prohibition, the trial court declared him indigent so his appointed counsel could proceed in this court, and it again postponed the trial.
Until July 15, 1980, Eire was actively challenging the trial court's right to proceed to trial. During this time period Eire was not, as a practical matter, "available for trial" 2 and his seeking appellate review in this matter is surely an "unexcused action" or "decision" sufficient to postpone the commencement of the running of the 90 day period until the prohibition matter was finally decided. Fla.R.Crim.P. 3.191(d)(3). Bryant v. Blount, 261 So.2d 847 (Fla. 1st DCA), cert. denied 267 So.2d 82 (Fla.1972). It would be unreasonable and uneconomic to require the state to proceed to try a case it could well be prohibited from trying. As the court said in State ex rel. Simonds v. Hall, 326 So.2d 443 (Fla. 2d DCA 1976):
To require the state to proceed to a new trial while...
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State v. Gibson, 5D00-702.
...3d DCA 1997); State v. Wilkes, 694 So.2d 127 (Fla. 5th DCA 1997); State v. Daniels, 413 So.2d 1256 (Fla. 5th DCA 1982); Eire v. Kaney, 393 So.2d 649 (Fla. 5th DCA 1981). Thus when Gibson and Creamer filed their Notice of Expiration on April 8, it was untimely and, therefore, a nullity and i......
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Hill v. State
...continuance is required because of circumstances chargeable to the defendant, the 180-day speedy trial limit is waived. Eire v. Kaney, 393 So.2d 649 (Fla. 5th DCA 1981). In the present case the state argues that the withdrawal of petitioner's counsel one week before the scheduled trial date......
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State v. Wilkes, 96-121
...defendant can waive the speedy trial rule by seeking a continuance, if the continuance is "chargeable" to the defendant. Eire v. Kaney, 393 So.2d 649 (Fla. 5th DCA 1981). Wilkes' attorney moved to continue on 13 March 1995 and 16 May 1995 during pre-trial hearings. In each case,"pre-trial m......