State v. McFarland, 5D99-1208.

• Decision Date: 07 January 2000
• Docket Number: No. 5D99-1208.,5D99-1208.
• Citation: 747 So.2d 481
• Parties: STATE of Florida, Appellant, v. John Daniel McFARLAND, Appellee.
• Court: Florida District Court of Appeals

747 So.2d 481

STATE of Florida, Appellant, v. John Daniel McFARLAND, Appellee.

No. 5D99-1208.

District Court of Appeal of Florida, Fifth District.

January 7, 2000.

Robert A. Butterworth, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellant.

No Appearance for Appellee.

ANTOON, C.J.

The state appeals the order entered by the trial court discharging John McFarland from prosecution. Discharge was based upon the court's ruling that the state had improperly failed to bring Mr. McFarland to trial within fifteen days of the filing of his motion for discharge. The state argues that discharge was erroneously granted because the state had complied with the five- and ten-day time period requirements set forth in rule 3.191(p)(3) of the Florida Rules of Criminal Procedure. We agree and therefore reverse.

Rule 3.191 of the Florida Rules of Criminal Procedure provides:

Rule 3.191. Speedy Trial

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(p) Remedy for Failure to Try Defendant within the Specified Time.

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(3) No later than 5 days from the date of the filing of a notice of expiration of speedy trial time, the court shall hold a hearing on the notice and ... shall order that the defendant be brought to trial within 10 days. A defendant not brought to trial within the 10-day period through no fault of the defendant, on motion of the defendant or the court, shall be forever discharged from the crime.

This court recently construed this rule to mean that, when a defendant files a notice of expiration of speedy trial, a hearing must be held within five days of the date of the filing of the notice, and then the defendant must be brought to trial within ten days of the hearing held on the notice. See State v. Garber, 726 So.2d 338 (Fla. 5th DCA 1999). In calculating these time periods, we look to rule 3.040 of the Florida Rules of Criminal Procedure:

Rule 3.040. Computation of Time

In computing any period of time prescribed or allowed by these rules ... the day of the act or event from which the designated period of time begins to run is not to be included. The last day of the period so computed shall be counted, unless it is Saturday, Sunday or legal holiday, in which event the period shall run until the end of a next day which is neither a Saturday, Sunday, nor a legal holiday. When the period of time prescribed or allowed shall be less than 7 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation....

Mr. McFarland was arrested in connection with a house fire in Orange County on October 4, 1998. He was later charged by information with committing various crimes, including arson of a dwelling in violation of section 806.01(1)(a) of the Florida Statutes (1997). On April 1, 1999, Mr. McFarland filed a notice of expiration of speedy trial, stating that more than 176 days had expired since his arrest. Five days later, on April 6, the trial court commenced a hearing on the discharge motion. The hearing was not concluded until April 7. It is clear that this hearing was properly held within the five-day recapture period...