Florida Rules of Criminal Procedure., In re, 40827
| Decision Date | 24 February 1971 |
| Docket Number | No. 40827,40827 |
| Citation | 245 So.2d 33 |
| Parties | In re FLORIDA RULES OF CRIMINAL PROCEDURE. |
| Court | Florida Supreme Court |
Florida Laws, ch. 71-1(B), § 6, provides as follows:
Florida Laws, ch. 71-1(B), § 7, repeals Fla.Stat. §§ 915.01 and 915.02, F.S.A. There now exists an emergency so that it is necessary for this Court to adopt a Rule providing the procedure through which the right to a speedy trial is guaranteed.
Until further order of this Court, and as an emergency matter, the Florida Rules of Criminal Procedure are hereby amended by adding thereto an additional Rule to be known as Rule 1.191, Speedy Trial, reading as follows:
Except as otherwise provided by this Rule, every person charged with a crime, by indictment or information or trial affidavit, shall without demand be brought to trial within 90 days if the crime charged be a misdemeanor, or within 180 days if the crime charged be a felony, capital or non-capital, and if not brought to trial within such time shall upon motion timely filed with the court having jurisdiction and served upon the prosecuting attorney be forever discharged from the crime; provided, the court before granting such motion shall ascertain that such person has been continuously available for trial during such period of time for trial. The time periods established by this section shall commence when such person is taken into custody as a result of the conduct or criminal episode giving rise to the crime charged. A person charged with a crime is entitiled to the benefits of this Rule whether or not such person has been held to answer at a preliminary hearing, or whether or not such person has waived such hearing, and whether such person is in custody awaiting trial or is at liberty on bail or recognizance. If such person is serving a sentence of imprisonment elsewhere than Florida for conviction of an unrelated crime, the operation of this section shall not be effective until such person is no longer confined. This section shall cease to apply whenever a person files a demand for speedy trial under § (a)(2).
Except as otherwise provided, and subject to the limitations imposed under section (c) hereof, every person charged with a crime, by indictment or information or trial affidavit, shall upon demand filed with the court having jurisdiction and upon service of a copy of such demand upon the prosecuting attorney be brought to trial within 60 days, unless the State is granted a continuance because of exceptional circumstances as defined in this Rule, and if not brought to trial within such period of time following such demand shall upon motion timely filed with the court and served on the prosecuting attorney be forever discharged from the crime; provided, the court before granting such motion shall ascertain that such person has been continuously available for trial during said period of time. The time period established by this section shall commence when such demand has been properly filed and served. If such person is serving in Florida or elsewhere a sentence of imprisonment for an unrelated crime, the operation of this section shall not be effective until such person is no longer imprisoned and becomes available for trial, nor until such person has abandoned or waived further proceedings under § (b)(2) of this Rule if such have been initiated.
A person shall be deemed to have been brought to trial if the trial commences within the time herein provided. The trial is deemed to have commenced when the trial jury panel is sworn for voir dire examination, or, upon waiver of a jury trial, when the trial proceedings begin before the judge.
Except as otherwise provided, a person who is imprisoned in a penal or correctional institution of this State or a subdivision thereof and who is charged by indictment or information or trial affidavit, whether or not a detainer has been filed against such person, shall without demand be brought to trial within one year if the crime charged be a misdemeanor or felony not involving violence, within two years if the crime charged be a noncapital felony involving violence, or if the crime charged be punishable by death; and if not brought to trial within such term shall upon motion timely filed with the court having jurisdiction and served upon the prosecuting attorney be forever discharged from the crime. The period of time established by this rule shall commence when the person is taken into custody as a result of the subject conduct or criminal episode, or when the subject charge of crime is filed, whichever is earlier, whether or not such period may commence to run before such person began to serve his term of imprisonment. The periods of time established by this section shall govern if the person is released from confinement while less than six months of such period of time for trial remains; if more than six months of such period of time for trial remains upon release from confinement, this section shall cease to apply and the rights of such person and of the State shall be governed by §§ (a)(1) and (2).
Except as otherwise provided, a person who is imprisoned in a penal or correctional institution of this State or a subdivision thereof and who is charged by indictment or information or trial affidavit, whether or not a detainer has been filed against such person, shall upon demand filed with the court having jurisdiction and upon service of a copy of such demand upon the prosecuting attorney be brought to trial within six months and if not brought to trial within such period of time for trial shall upon motion timely filed with the court and served on the prosecuting attorney be forever discharged from the crime; provided, the State shall waive objection to merely formal defects in the demand so long as notice of the crime sought to be discharged and the relief otherwise sought is sufficient to inform the court and the prosecuting attorney. The period of time for trial established by this section shall commence when such demand is filed and served; and such period of time for trial shall continue to run if such person is released from confinement during such time, provided the court shall ascertain before granting a motion for discharge that such person has been continuously available for trial following such release. If a person who files a demand for trial or for discharge under this rule becomes involuntarily unavailable for trial, the court shall enter such orders as are in the interests of justice. A person who elects to proceed under this section may not thereafter proceed under § (a)(2) unless he first files with the court and serves upon the prosecuting attorney a waiver or abandonment of all motions or proceedings under this section.
A person who is imprisoned upon conviction of a crime in a penal or correctional institution outside the jurisdiction of this State or a subdivision thereof, and who is charged with a crime by indictment or information or trial affidavit issued or filed under the laws of this State, is entitled to a speedy trial upon demand filed with the court having jurisdiction and upon service on the prosecuting attorney. After the demand has been filed, such person is entitled to trial within the periods of time established by § (b)(2), commencing after the prosecuting attorney has filed a detainer or has otherwise attempted to secure the presence of the accused for trial or within a reasonable time as determined by the court if the prosecutor has not acted in response to the demand for trial; and if not brought to trial within such period of time shall upon motion timely filed with the court and served upon the prosecuting attorney be forever discharged from the crime; provided, the court before granting such motion shall ascertain that such person has been continuously available for return to this jurisdiction for trial during such period of time. No rights shall accrue to a person under this section if such person refuses to execute every waiver, consent or release necessary to secure his return to this jurisdiction, or if the custodial officials of the jurisdiction in which the prisoner is confined refuse to release him for return to this jurisdiction for trial while such refusal continues.
The primary burden for bringing about a speedy trial is on the defendant; however, upon demand, the State must act affirmatively to give such person a speedy trial and must employ all reasonable means to do so. A demand for speedy trial shall state the prisoner's...
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Banks v. State, 93-0983
...trial shall be scheduled and commence within 90 days." [emphasis supplied.] 253 So.2d at 863; see also In re Florida Rules of Criminal Procedure, 245 So.2d 33, 36 (Fla.1971). The history of rule 3.191 shows that the words "attributable to the accused" in what is now subdivision (j)(2) repla......
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...the impact of a reprosecution on the administration of this chapter and on the administration of justice.7 See In re Florida Rules of Criminal Procedure, 245 So.2d 33 (Fla.1971).8 See Fla. R.Crim. P. 1.191(d)(2) (1971) ("The periods of time established by this Rule for trial may at any time......
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