Rubiera v. Dade County ex rel. Benitez

Decision Date11 December 1974
Docket NumberNo. 44608,44608
Citation305 So.2d 161
PartiesHonorable C. P. RUBIERA, Judge of the Metropolitan Court in and for Dade County, Florida, Petitioner, v. DADE COUNTY, Florida, ex rel. Jose BENITEZ, Respondent.
CourtFlorida Supreme Court

Richard E. Gerstein, State's Atty., and John P. Durant, Asst. State's Atty., for petitioner.

Luis P. Salas, Miami, for respondent.

ADKINS, Chief Justice:

In this certiorari review of a decision of the District Court of Appeal, Third District, we have jurisdiction pursuant to Article V, Section 4, Florida Constitution.

The respondent, Jose Benitez, was arrested on August 25, 1972, and charged with unlawful practice of optometry, a misdemeanor under Fla.Stat. § 463.20, F.S.A. He was arraigned on October 2, 1972. Motions to produce and for the taking of depositions were filed by respondent on September 28, 1972, and granted on November 3, 1972. On November 8, 1972, notices of taking depositions and subpoenas were mailed to the Clerk of the Metropolitan Court. Said depositions were to be taken on November 16, 1972, but the subpoenas were returned to the Clerk on November 14, 1972, since his signature was not completed and the date of signing had not been indicated on the subpoenas. As a result, the notices of taking depositions and subpoenas were not served until November 27, 1972. The depositions were rescheduled for December 5, 1972. A motion for discharge pursuant to Rule 3.191(d)(1), CrPR, was filed with the trial court on November 28, 1972, because trial on the misdemeanor charges was not brought within 90 days as required by said Rule, which provides in relevant part:

'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 . . . 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.' Rule 3.191(a)(1), CrPR.

The motion was denied on December 15, 1972. Thereafter, upon suggestion filed by respondent, the Circuit Court for Dade County entered a writ of prohibition against the trial judge, petitioner herein, and ordered the discharge of the respondent. The District Court of Appeal, Third District, affirmed per curiam, without opinion.

As defendant made no demand for trial, his right to discharge within a specified time must initially be determined under subsection (a)(1) of Rule 3.191. By the express language of this section the defendant must be 'continuously available' for trial. When he moved for discharge defendant was involved in trial preparation by availing himself of criminal discovery tools. Notice of taking depositions was served one day prior to filing of motion for discharge. They were scheduled to be taken some eight days later. Under these facts the record fails to disclose that defendant was ready to proceed with his formal defense or otherwise be 'continuously available' within the meaning of Rule 3.191(a)(1) and (e).

Assuming arguendo that there had been no error in expediting the original notices of taking depositions and they could have been taken as originally scheduled on November 16, 1972, (prior to the running of the 90 days) there was hardly sufficient time between November 16th and the end of the 90-day period to allow for copies of the depositions to be delivered to the defense counsel and for him to be ready for trial at the end of the 90-day period.

Even though because of the circumstances created by defendant, he is not entitled to trial within 90 days, he still has a right to speedy trial as guaranteed by Article I, Section 16, Florida Constitution. As the Court said in State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971):

'. . . the purpose of the Speedy Trial rule is to implement the practice and procedure by which the defendant may seek to be guaranteed his speedy trial.' 253 So.2d at 863.

The Speedy Trial Rule was promulgated and its specific time limits established with a view toward expediting the administration of criminal justice. The distinction drawn between the 180-day felony rule and the 90-day misdemeanor rule is founded in practicalities of criminal defense. Both the prosecution and defense of felony charges usually involve more extensive trial preparation than in the case of misdemeanors. This reality is reflected by establishing two distinct periods where no demand is made. And, a demand coupled with defendant's availability lessens the period to 60 days. Inherent in the rationale behind a shorter period where a demand is made is that the case is ready to be tried, the defendant has completed his discovery and other trial preparation, and hence, is ready to defend.

A holding that a defendant who avails himself of discovery tools so as to make himself 'unavailable' under Rule 3.191(a)(1) is not a retreat from the constitutional mandate of Article I, Section 16, which applies in every criminal case irrespective of the applicability of specific time limits contained in Rule 3.191. While State ex rel. Butler v. Cullen, Supra, involved a continuance, the principles elicited are apposite Sub judice. There the graning of a continuance negated the time limits set forth in the rule. Defendants moved for continuance in order that they could have additional time to prepare their defense. When such action constituted a waiver of the Speedy Trial Rule time limits, this Court stated:

'. . . then it became incumbent upon the trial court to set a trial date far enough in advance to allow the petitioners adequate time for preparation of their defenses, but, also, guaranteeing to the petitioners their constitutional right to a speedy trial.'

'. . . 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 necessarily relative. It is consistent with delays and the question of whether a trial date affords petitioners a speedy trial must be determined in the light of the circumstances of the particular case as a matter of judicial discretion. The mere lapse of time before trial is not the only factor to be considered under such circumstances. Any unreasonable delay arising from the negligence of the prosecution without fault or consent by the accused violates the guaranty of a speedy trial.' 253 So.2d at 862, 863.

But operation within the confines of the Rule should not be lightly disregarded for an undefined though reasonable constitutional standard. Trial judges, prosecutors, defendants and their counsel deserve the type of certainty afforded by the Rule. Moreover, they are bound to work within these confines so as to aid the implementation of the accused's right to speedy trial. Even if specific limits become inoperative and strict adherence to the initial period is no longer required, the Rule affords an element of flexibility which provides an accused with alternative means whereby he may perfect his right to a speedy trial.

Subsection (d)(2) of Rule 3.191 is such a mechanism whereby time may be extended to accommodate the need of either side for additional time. Use of discovery procedures to prepare for trial is one type of reasonable delay envisioned. Such delays are 'excused' with the qualification that a court order extending time has been entered. The court order serves to advise all concerned that new time limits are in effect.

Further, the court Sua sponte may order an extension when exceptional circumstances defined in subsection (f) of Rule 3.191 exist. In that case, the Rule provides for a new trial date within a reasonable time. Crucial to both methods of extention is that a court order issues, becomes part of the record, and all parties are once again working within a defined time period.

If the means for an extension provided is subsection (d)(2) of Rule 3.191 are not utilized when circumstances prevent trial within the original time limits, a defendant is within subsection (d)(3) when he seeks discharge while engaged in discovery. At this point what would otherwise constitute reasonable grounds for delay then becomes unexcused delay because he has not sought a court order and, by express provisions in the Rule, his pending motion for discharge is voidable on motion by the State. In this instance subsection (d)(3) provides that the trial shall commence within 90 days. Once again, the parties are on notice as to the time limits which will assure the accused his speedy trial right.

Of course, the defendant, when ready for trial, may file a demand for speedy trial. He must then be brought to trial within 60 days.

The means whereby a defendant may conscientiously prepare his defense as well as be guaranteed his right to a speedy trial are available under Rule 3.191. It is incumbent upon those involved in the administration of criminal justice to work within its framework. The guarantee of Rule 3.191 is not inconsistent with the accused's right to utilize discovery tools available to him. He may do both; however, utilization of discovery procedures may to some extent define 'speedy trial.' The method whereby 'speedy trial' is redefined after the initial time periods are inoperative is by proper court order which establishes a new time limit in which trial will commence.

Under the facts Sub judice the motion for discharge should have been denied in accordance with subsection (d)(3) of Rule 3.191 and the trial date rescheduled to commence within 90 days.

The decision of the District Court of Appeal is quashed. This cause is remanded to the District Court for further remand to the Circuit Court with instructions to discharge the...

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34 cases
  • Porter v. State
    • United States
    • Florida District Court of Appeals
    • 7 Marzo 1978
    ... ... See State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971); Rubiera v. e County ex rel. Benitez, 305 So.2d 161 (Fla.1974); State v. Nelson, ... ...
  • Banks v. State, 93-0983
    • United States
    • Florida District Court of Appeals
    • 19 Febrero 1997
    ... ... 5th DCA 1982). See also Rubiera v. Dade County ex rel. Benitez, 305 So.2d 161 (Fla.1974); ... ...
  • Tucker v. State
    • United States
    • Florida Supreme Court
    • 5 Abril 1978
    ... ... the delay should be attributed to him, relying on Rubiera v. Dade County ex rel. Benitez, 305 So.2d 161 (Fla.1974), ... ...
  • Stuart v. State
    • United States
    • Florida Supreme Court
    • 8 Junio 1978
    ... ... State, 297 So.2d 135 (Fla.2d DCA 1974) and State ex rel. Flowers v. Goodman, 241 So.2d 457 (Fla.3d DCA 1970). We ...         The state cites Rubiera v. Dade County ex rel. Benitez, 305 So.2d 161 (Fla.1974), ... ...
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1 books & journal articles
  • Misdemeanor defense
    • United States
    • James Publishing Practical Law Books Florida Small-Firm Practice Tools - Volume 1-2 Volume 2
    • 1 Abril 2023
    ...involve more extensive trial preparation than in the case of misdemeanors.” [ Rubiera v. Metropolitan Dade County ex rel. Benitez , 305 So. 2d 161, 162 (Fla. 1974).] When a misdemeanor charge and a felony charge are consolidated in a single case before the circuit court, the felony time fra......

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