State Ex Rel. Smith v. NesbittState Ex Rel. Smith v. Nesbitt
This is an original suggestion for a writ of prohibition challenging the jurisdiction of a judge of the Dade County Circuit Court to try a criminal case on the alleged ground that the defendant‘s right to a speedy trial has been denied under
The controlling issue presented for review is whether a criminal defendant arrested and later charged by information with certain offenses is unavailable for trial sufficient to toll the speedy trial limits under
The facts of the case are undisputed. On December 1, 1976, the relator Richard Victor Smith was arrested by an officer of the Dade County Public Safety Department and charged with certain felony offenses, to wit: battery upon a police officer, resisting a police officer with violence, and a misdemeanor offense of disorderly conduct. He was subsequently released on bail from the Dade County Jail.
On December 12, 1976, a committing magistrate held a preliminary hearing on the above charges and the defendant was thereafter bound over for trial before the County Court of Dade County on the reduced misdemeanor charges of simple battery, resisting a police officer without violence, and the original misdemeanor charge of disorderly conduct. The defendant was allowed to remain on bail by the committing magistrate on such charges.
On December 28, 1976, the state filed a direct information against the defendant before the Circuit Court for the Eleventh Judicial Circuit of Florida re-instating the original felony charges upon which the arrest was made and which the committing magistrate had reduced, as well as the original disorderly conduct charge. A written notice of the arraignment before the circuit court on such charges was mailed to the relator‘s last known address.
On January 14, 1977, the relator did not appear in circuit court for arraignment and an alias capias was issued for his arrest. On August 12, 1977, the relator was served with a capias and arrested. On September 21, 1977, the relator filed a motion for discharge under the speedy trial rule as he had not to that date been brought to trial. The respondent circuit court judge Lenore C. Nesbitt denied the motion. This suggestion for a writ of prohibition follows.
The law is clear that if a defendant in a criminal case is not brought to trial within 180 days after being taken into custody on a felony charge or 90 days after being taken into custody on a misdemeanor charge and is continuously available for trial during such time period, he must be finally discharged from the cause under
There is no presumption that a defendant is unavailable for trial within the meaning of
Ordinarily, a defendant who is on bail or personal recognizance and who fails to appear in court pursuant to proper notice is unavailable for trial within the meaning of
In the instant case, there is no dispute that more than 180 days have elapsed between the date of the relator‘s arrest herein and the date the relator filed his motion for discharge in the trial court. The defendant has not been brought to trial during this period of time, no order has been sought or obtained extending the speedy trial limits, and the defendant has not waived his speedy trial rights.
The sole issue in controversy is whether the defendant has been continuously available for trial during the above speedy trial time periods. The defendant was on bail after the committing magistrate hearing solely on misdemeanor charges before the County Court of Dade County. He was under no obligation by the terms of his bail or by order of the committing magistrate to appear pursuant to notice in any court other than the County Court of Dade County on the misdemeanor charges on which the committing magistrate bound the relator over for trial.
The state apparently was dissatisfied with the committing magistrate‘s decision and declined to pursue the reduced misdemeanor charges herein in county court. While the state had a right to make such a decision and file a direct information before the Circuit Court for the Eleventh
The state counters that it was only fair to give the defendant written notice to appear before having a capias issued for his arrest and that it should not thereby be penalized for following such a procedure. We agree. Although
It is clear that no speedy trial problem would have arisen if the state had chosen to abide by the committing magistrate‘s bind over decision herein and pursued the case in county court. The defendant‘s non-appearance in court pursuant to notice in county court would have tolled the speedy trial time limits because the defendant was on bail on those charges before the county court and would have been obligated to appear pursuant to notice. The defendant‘s non-appearance in county court pursuant to notice would also have been sufficient to estreat his bail. Not so his non-appearance in circuit court. His bail bond could not have been estreated by the circuit court, and, as such, neither could the speedy trial limits be tolled.
The state relies on Montalvo v. State, 323 So.2d 674 (Fla. 3d DCA 1975). We find this case to be inapplicable to the instant case because there the defendant failed to provide a complete record upon which this court could squarely reach a decision on the speedy trial issue there presented. In the instant case, a full record has been presented and we must meet the issue presented on the merits.
We conclude that the relator was entitled to have been discharged under the speedy trial rule and the suggestion for writ of prohibition is granted. In view of this opinion, however, we assume that the issuance of a formal writ is unnecessary and that the trial court respondent will discharge the relator from the cause.