State v. Dorian

Decision Date30 March 1993
Docket NumberNo. 91-1407,91-1407
Citation619 So.2d 311
Parties18 Fla. L. Week. D856 The STATE of Florida, Appellant, v. Todd DORIAN, Appellee.
CourtFlorida District Court of Appeals

Robert A. Butterworth, Atty. Gen., and Julie S. Thornton, Asst. Atty. Gen., Janet Reno, State Atty., and Lisa Berlow-Lehner, Asst. State Atty., for appellant, cross-appellee.

Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, for appellee, cross-appellant.

Before SCHWARTZ, C.J., and BARKDULL, HUBBART, NESBITT, BASKIN, FERGUSON, JORGENSON, COPE, LEVY, GERSTEN and GODERICH, JJ.

ON MOTION FOR REHEARING EN BANC

FERGUSON, Judge.

On May 20, 1981, Todd Dorian was arrested for the murder by strangulation of George Litwin. A grand jury indicted him for first-degree murder and first-degree arson. The indictment was nolle prossed because of the State's inability to locate its witnesses. Six years later Dorian was arrested on unrelated robbery charges. In the belief that he could not be prosecuted for the 1981 murder, arson, and armed burglary, Dorian confessed to the old charges.

In a motion for discharge the defendant conceded the inapplicability of the former speedy trial rule--which provided for automatic discharge after 180 days--and argued instead that he was entitled to a discharge under constitutional speedy trial guarantees. The motion was denied. Along the way the trial court found that the 1981 dismissal and 1990 refiling was not in bad faith. Neither of those two rulings is challenged in this appeal. 1 Two weeks after the jury was sworn, the defendant filed a new motion for discharge claiming for the first time that the revised speedy trial rule, effective January 1, 1985, which gave the State a fifteen-day window period in which to try the defendant after a motion for discharge is filed, did not apply. The trial court agreed and discharged the defendant.

The single issue presented, and argued by the parties, is whether the 1985 version of the speedy trial rule--with its fifteen-day window period--applies to this case.

I.

In the original per curiam opinion for the unanimous panel we held:

As the State properly contends, the trial court erred in granting the defendant's motion for discharge. The Supreme Court of Florida in Bloom v. McKnight, 502 So.2d 422, 423 (Fla.1987), stated that the filing of the motion for discharge is the "operative event" which determines which version of the speedy trial rule applies. See also Zabrani v. Cowart, 502 So.2d 1257 (Fla. 3d DCA 1986), decision approved 506 So.2d 1035 (Fla.1987). In the instant case, the rule in effect at the time the motion for discharge was filed was the revised speedy trial rule which provides for the window period.

That holding was eminently correct.

Dorian argues here that the new rule cannot apply because his right to discharge vested before the new 1985 rule creating the window period became law. That argument lacks merit because the speedy trial rule accords no substantive rights subject to vesting. The supreme court in Bloom reiterated that the rule is one of procedure and that "a defendant who has been denied a speedy trial is not entitled to a discharge until he files a timely motion therefor...." Bloom, 502 So.2d at 423. Dorian's motion for discharge was filed for the first time on May 17, 1991--two days after the trial commenced. 2 Undergirding the defendant's attempt to distinguish this case from the Bloom and Zabrani cases, is still a claim of a vested right to whatever speedy trial rule existed when the original indictment was dismissed. That "vested right" theory cannot be reconciled with the crystal clear Bloom-Zabrani principle that the filing of the motion is the operative event that tells what version of the speedy trial rule governs.

State ex rel. Atwood v. Baker, 250 So.2d 869 (Fla.1971), relied on by Dorian as authority for his claim of entitlement to an automatic discharge, is distinguishable. The defendant in that case filed a series of motions for discharge before the 1971 repeal of the former speedy trial statute, section 915.01(2), and in the interim period preceding the adoption of the first speedy trial rule, 1.191. The court held that during the time period subsequent to the repeal of the statute and prior to the effective date of the rule, the defendant's only surviving right to a speedy trial was based on constitutional principles. Holding that the former statute, on which the first discharge motion was premised, was the "legislative determination of the maximum delay" granted by the constitution, the court directed that the defendant be released. Id. at 871. In contrast to Atwood, who first moved for discharge prior to the repeal of the speedy trial statute, Dorian filed for discharge under a procedural rule. The 1981 version of the subsequently amended rule 3.191 was not a "legislative determination of maximum delay," and therefore granted the defendant no constitutional right to discharge.

More importantly, the statutory rights created by section 915.01(2), Florida Statutes, were specifically preserved in rule 1.191(i)(3), which provided "[a]ny rights which shall have accrued to any defendant under the former Fla.Stat. Secs. 915.01 and 915.02 shall not be disturbed by this Rule." In promulgating the 1985 rule amendment, the Florida supreme court did not enact a provision similar to 1.191(i)(3) preserving rights. Unlike statutes, rules of procedure do not create substantive rights; they merely provide the remedies to enforce rights. See Haven Fed. Sav. & Loan Ass'n v. Kirian, 579 So.2d 730 (Fla.1991) (discussion on distinction between procedural and substantive law); State v. Garcia, 229 So.2d 236 (Fla.1969) (same); Birnholz v. 44 Wall Street Fund, Inc., 880 F.2d 335 (11th Cir.1989) (no one has a vested right in any given mode of procedure).

II.

Relying on the first district's opinion in State v. Agee, 588 So.2d 600 (Fla. 1st DCA 1991), 3 which held that "[t]he speedy trial rule contains no 'good faith' exception," the defendant's alternative position is that he should have been discharged even if the new rule applied because "the state cannot be allowed ... to unilaterally extend the speedy trial limit and with it the fifteen day window provision of Rule 3.191(i) by its nolle prosequi and refile power." In response, the State contends that the trial court should not have construed the rule as draconian in import, but should have given meaning to its good faith language. We agree. Rule 3.191(h)(2) provides:

Nolle Prosequi; Effect. The intent and effect of this Rule shall not be avoided by the State by entering a nolle prosequi to a crime charged and by prosecuting a new crime grounded on the same conduct or criminal episode....

(Emphasis added).

If the drafters of the rule had intended the interpretation advanced by the defendant, they would have said, in fewer words, that the time period established by these rules for bringing the defendant to trial is not tolled by the entry of a nolle prosequi. Instead, the drafters used language, which as fairly interpreted, means that a nolle prosequi cannot be used for the purpose of circumventing the speedy trial rule. Although the Agee court ruled otherwise, the Supreme Court of Florida has never held that there is no good faith exception in the speedy trial rule.

Federal courts hold uniformly that there is a good faith exception to the speedy trial requirement under both the constitutional provision and the procedural rule. In United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982), the United States Supreme Court concluded that because the speedy trial clause was designed to protect against pretrial incarceration and anxiety, the right to a speedy trial no longer exists once the government, in good faith, drops the charges. Once charges are dropped, the individual is placed in the same position as a person who, although subject to a criminal investigation, has not yet been accused. See generally Note, Narrowing the Scope of the Speedy Trial Right: United States v. MacDonald, 36 S.W.L.J. 1213 (1983). The MacDonald court limited its holding to cases where the government had dismissed the original charges in good faith. Id., 456 U.S. at 7, 102 S.Ct. at 1501.

Under the Federal Speedy Trial Act, 18 U.S.C. sections 3161(d) and 3161(h)(6), the period after dismissal of initial charges is not included in determining whether the speedy trial clause has been violated, unless the prosecution dismissed the charges as a tactical measure. See United States v. Rodriguez-Restrepo, 680 F.2d 920 (2d Cir.1982) (time between dismissal of original indictment and defendant's subsequent appearance to answer later indictment on same charges was not to be included in computing time elapsed under Speedy Trial Act); United States v. Pajari, 715 F.2d 1378 (8th Cir.1983); United States v. Hicks, 693 F.2d 32 (5th Cir.1982); United States v. Martin, 543 F.2d 577 (6th Cir.1976). Because the speedy trial rule has no application where the government, acting in good faith, formally drops charges before the speedy trial period expires, the rule does not prevent the government from reopening the case.

A correct interpretation of rule 3.191(i)(3) of the 1985 revised speedy trial rule, which honors Bloom and this court's opinion in Zabrani, is that it applies to the refiled indictment because the operative event, the filing of the motion for discharge, did not occur until May, 1991. A fair reading of rule 3.191(h)(2), consistent with the federal rule, instructs that the running of the speedy trial period is tolled with the dismissal of an indictment unless the accused shows that the dismissal was tactical or in bad faith. No contention is made in this appeal that the trial court's no-bad-faith finding was without a factual basis.

Reversed and remanded for further consistent proceedings.

SCHWARTZ, C.J., and NESBITT, JORG...

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  • Doe v. State
    • United States
    • Florida District Court of Appeals
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    ...law creates substantive rights; rules of procedure ... ‘merely provide the remedies to enforce rights.’ " (quoting State v. Dorian, 619 So.2d 311, 313 (Fla. 3d DCA 1993) )). To elevate a rule of procedure or judicial administration—drafted by a committee and adopted under authority relegate......
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