Kelly v. State ex rel. Morgan
| Decision Date | 16 October 1951 |
| Citation | 54 So.2d 431 |
| Parties | KELLY, Sheriff, v. STATE ex rel. MORGAN. |
| Court | Florida Supreme Court |
Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellant.
O. B. White and E. S. Corlett, III, Miami, for appellee.
In December 1949 James Morgan was arrested on a criminal charge and on February 23, 1950, he was given a preliminary hearing before a Justice of the Peace. He was charged with murder in the first degree and bound over without bond, subject to the action of the Grand Jury. May 8, 1950, he was indicted for murder in the second degree and entered a plea of not guilty. He was tried August 22, 1950, resulting in a mistrial. The case was then set for trial November 3, 1950, but, upon the State's motion was postponed. These proceedings took place in Dade County where there are three terms of the Circuit Court and six terms of the Criminal Court of Record annually.
November 30, 1950, on petition of defendant, writ of habeas corpus was issued by the Circuit Court returnable December 1st. A return to the writ challenged some of the allegations of the petition and admitted others. In reliance on Sections 4 and 11, Declaration of Rights, F.S.A., and Section 915.01(1), F.S.A., petitioner on December 6, 1950, moved to be discharged from further prosecution. The Circuit Court ordered that he be tried within ten days or discharged from prosecution. A return to said order noted failure to try defendant and he was ordered released. This appeal was prosecuted.
The point raised turns on the application of Sections 4 and 11, Declaration of Rights and Section 915.01(1), F.S.A. to the order of the trial court, releasing petitioner from further prosecution.
Section 915.01(1), F.S.A. is as follows:
Section 915.01(1), F.S.A. specifies the manner in which a speedy trial, as guaranteed by Sections 4 and 11, Declaration of Rights, may be secured, the pertinent part to this case being that he must 'apply to the court on the first day of the term to which he has been committed, that he desires to be brought to his trial before the end of the term.' This provision must be read with the concluding provision, 'if he is not tried at or before the third term after the date he is first committed, he shall be forever discharged from the crime.' The real point here is whether or not petitioner has syncronized his request for trial with these provisions of the statute.
Silence on the part of the accused will not activate the statute. If he desires a speedy trial he must ask for it, otherwise it will not be afforded him. The petitioner did not ask for a trial till after he was bound over by the Justice of the Peace, indicted by the Circuit Court, arraigned in and entered a plea of not guilty in the Criminal Court of Record, which appears to have been July 18, 1950, during the June term of said Court. The ...
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State v. Ochoa
...in the event of each mistrial would ... do violence to our organic guarantee of speedy trial...."), overruling Kelly v. State ex rel. Morgan, 54 So.2d 431, 432 (Fla. 1951). It is also inconsistent with our obligation to consider the unique circumstances underlying each speedy trial claim, i......
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Smith v. State
...accused will not activate this statute', citing the Supreme Court cases of Loy v. Grayson, Fla.1957, 99 So.2d 555 and Kelly v. State ex rel. Morgan, Fla.1951, 54 So.2d 431. And in Dickey v. Circuit Court, Gadsden County, Fla.1967, 200 So.2d 521, the Supreme Court said that § 915.01 'places ......
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...Feger v. Fish, 1932, 106 Fla. 564, 143 So. 605. See also State ex rel. Curley v. McGeachy, 1942, 149 Fla. 633, 6 So.2d 823; Kelly v. State, Fla.1951, 54 So.2d 431; Loy v. Grayson, Fla.1957, 99 So.2d 555. The legal right of the accused that 'he shall be forever discharged from the crime' is ......
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Ruester v. Turner
...are discharged and a mistrial entered of record * * *.' 107 So. at 269. A relatively similar situation obtained in Kelly v. State, ex rel. Morgan, 54 So.2d 431 (Fla.1951), and citing Gayle, we again held that a mistrial was a Although both Gayle and Kelly involved early statutory forms of F......