448 So. 2d 596 | Fla. Dist. Ct. App. | 1984
Appellant, the State of Florida, seeks review of the trial court’s order granting appellee’s motion for discharge. We reverse.
The issue on appeal is whether a waiver of the 180-day speedy trial rule in Rule of Criminal Procedure 3.191(a)(1), prior to the entry of a nolle prosequi of an information, is effective as to a subsequently filed indictment based on the same episode.
Appellee, Jose P. Albanez, was arrested May 8, 1982, and charged by information with introduction of cannabis into the State of Florida in violation of section 893.-13(l)(d), Florida Statutes (1981). Counsel for defense was granted four continuances. On December 3, 1982, a nolle prosequi was filed. On April 28, 1983, appellee was charged by indictment with eight counts of trafficking in cannabis, criminal conspiracy to traffic in cannabis and cocaine into the State of Florida. The original information and count III of the indictment were based on the same criminal episode.
Appellee filed a motion for discharge, directed to count III of the indictment, under rule 3.191 and State v. Bacon, 385 So.2d 1160 (Fla. 2d DCA 1980), on September 9, 1983. Under Bacon, this court held that a defendant who waives speedy trial must be brought to trial within 180 days following his arrest, plus the period of time elapsing between the waiver of speedy trial and the dismissal of the original information. Appellee claimed he was entitled to be brought to trial within 316 days following his arrest: (1) 180 days under the speedy trial limitation, and (2) 136 days attributable to defense delays. The trial court, relying on Bacon, granted the motion for discharge and adopted the defense pleadings.
We find that the trial court erred by applying the formula described in Bacon. Shortly after Bacon, the Florida Supreme Court decided Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980), and held that after a defense continuance, the 180-day speedy trial rule no longer applies. Id. at 970, citing State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971). In Fluellen, the court indicated that the defendant must reactivate his right to speedy trial by filing a demand for speedy trial under Rule of Criminal Procedure 3.191(a)(2) or a motion for discharge which is denied under Rule of Criminal Procedure 3.191(d)(3); without such action, the statutorily provided speedy trial is waived forever.
Prior to Fluellen, the effect of the continuance was not so clear. In Cullen, cited
For the foregoing reasons, we find that appellee’s waiver of speedy trial, prior to the entry of the nolle prosequi on the original information, carried over to count III of the subsequent indictment. Therefore, the speedy trial limitation had not run as to the indictment. We reverse the trial court’s order granting appellee’s motion for discharge.