State v. Williams, 76--1677
| Decision Date | 06 April 1977 |
| Docket Number | No. 76--1677,76--1677 |
| Citation | 344 So.2d 311 |
| Parties | STATE of Florida, Appellant, v. Greg P. WILLIAMS, Appellee. |
| Court | Florida District Court of Appeals |
Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellant.
Martin E. Rice of Harris, Clark, Green, Piper & Davenport, St. Petersburg, for appellee.
This is an appeal from an order of discharge for failure to provide a speedy trial.
On May 14, 1975, the appellee was arrested for possession and sale of cocaine. Trial was set for September 26, 1975. On September 12, 1975, appellee filed a motion to exclude witnesses. On September 26, 1975, an order was entered excluding two of the state's witnesses from testifying at the trial. The state immediately filed a notice of appeal from this order. At the same time the state also moved for an order staying the speedy trial time pending the appeal and the motion was granted on September 26, 1975.
This court treated the appeal as a petition for certiorari and denied the petition. This court's mandate was filed below on July 14, 1976. A new trial date was set for September 30, 1976. Appellee then filed a motion for discharge pursuant to the speedy trial rule which was granted on September 30, 1976.
The problem here is that when the appeal was taken and the stay order entered, 135 days of the 180 days available under the speedy trial rule had already elapsed. Therefore, the court reasoned that the state only had 45 days left after the appeal was adjudicated to bring the appellee to trial. Since the trial did not take place within this 45 day period, the appellee was ordered discharged.
The state contends that it was entitled to 90 days after the appeal was decided within which to bring the appellee to trial. The state relies primarily upon State v. Vinson, 294 So.2d 418 (Fla.2d DCA 1974), in which this court observed, by way of dictum, that the automatic 90 day extension under Fla.R.Crim.P. 3.191(g) 1 would apply to the reversal of an order dismissing an information. 2 We do not find the Vinson rationale persuasive where, as here, the state's appeal which brought about the trial delay was unsuccessful. 3
The speedy trial rule specifically contemplates the effect of an interlocutory appeal upon the speedy trial time. Thus, Fla.R.Crim.P. 3.191(d) (2) states:
(Emphasis supplied.)
Certiorari proceedings raising questions bearing directly on the trial itself may properly be considered as interlocutory appeals for purposes of this provision. Esperti v. State, 276 So.2d 58 (Fla.2d DCA 1973). 4 Moreover, the state availed itself of this provision when it moved for a stay upon the filing of the notice of appeal. Unfortunately for the state, its motion requested the court only
'. . . to stay the Speedy Trial Rule, as set forth in Florida Rules of Criminal Procedure 3.191, for the period of time necessary to complete appellate procedures instituted in the above-styled cause.'
The order simply recited that the motion for staying speedy trial rule was granted. By the very terms of the motion and order, the time was only stayed pending the completion of the appellate proceedings. The order served to advise all concerned of the new time limits which were in effect. See Rubiera v. Dade County ex rel. Benitez, 305 So.2d 161 (Fla.1974).
Upon the conclusion of the appellate proceedings, the speedy trial time recommenced running. When the state failed to bring the case to trial within the 45 days which were left, the appellee was entitled to discharge. 5
Questions as to whether or to what extent the speedy trial time should be tolled for appeal or certiorari are continuing to occur. There seems to be little uniformity on the subject, and Fla.R.Crim.P. 3.191 as now written does not provide ready answers to these questions. Accordingly, we have determined to certify this decision to the supreme court as representative of those cases in which the...
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Tucker v. State
...(Fla.2d DCA 1974).5 344 So.2d at 288. At about the same time, the district court also certified to us its decision in State v. Williams, 344 So.2d 311 (Fla.2d DCA 1977), which involved the applicability of the same two provisions of Rule 3.191 where the state un successfully appealed an unf......
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State v. Smail, 76-1843
...those circumstances it could not be said that the appellee played any part in bringing about the trial delay. See State v. Williams, 344 So.2d 311 at 312 n. 3 (Fla.2d DCA 1977). We recognize that this decision, as in Tucker, constitutes an extension of the literal language of Fla.R.Crim.P. ......
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State ex rel. Mitchell v. Beverly, HH-153
...the Supreme Court acted on the application. That we feel, is contrary to the letter and spirit of Rule 3.191(g). See State v. Williams, 344 So.2d 311 (Fla. 2d DCA 1977), approved, 350 So.2d 81 (Fla.1977). Contrast State v. Sampson, 317 So.2d 782 (Fla. 3d DCA We recognize that the issuance o......
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State v. Williams
...to Article V, Section 3(b)(3), Florida Constitution, we review a decision of the District Court of Appeal, Second District, reported at 344 So.2d 311. In the decision certified to us, the district court passed upon the effect of an interlocutory appeal by the State on Fla.R.Crim.P. 3.191, t......