Florida Speedy Trial Provisions
Two different types of speedy trial rights exist for a criminal case in Florida.
- First, a person charged with a criminal offense in Florida is entitled to the statutory speedy trial rights provided under Florida Statutory provisions which provide for very specific time limits. The speedy trial time limit for a misdemeanor is 90 days. The speedy trial time limit for a felony is 175 days.
- Second, a person charged with a criminal offense is entitled to the state constitutional protections provided by the Florida Constitutional and/or the federal constitutional protections under the Sixth Amendment which provide for a speedy trial even when the statutory remedy under state law has been waived.
Florida Right to Speedy Trial
The speedy trial provisions provided by the state and federal constitution are "an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibility that long delay will impair the ability of an accused to defend himself." Dickey v. Florida, 398 U.S. 30, 37–38 (1970).
The Florida legislature in enacting the statutory speedy trial rights also recognized that the passage of time may blur the memories of the witnesses leading to an unjust verdict. The purpose of the speedy trial provisions is to provide a defendant with a speedy trial when he has a "bona fide" desire for a speedy trial.
Delay in Filing Formal Charges After an Arrest
The right to a speedy trial is particular important when the police make an arrest and then the State Attorney's Office takes an unusually long time to file criminal charges. The speedy trial rule often explains why the law enforcement officers wait until the entire investigation is complete before making an arrest. The arrest, under most circumstances, will trigger the speedy trial provisions.
The right to a speedy trial is different from the statute of limitations. In the criminal justice context, the statute of limitations prevents law enforcement officers from taking too long to make the arrest after the crime allegedly occurred.
Speedy Trial Rights When the Original Felony Arrest is Filed Ultimately as a Misdemeanor
The ninety day speedy trial right in misdemeanor cases often comes into play when the defendant is originally arrested for a felony and then the prosecutor with the State Attorney's Office makes a filing decision to only proceed on misdemeanor charges.
The filing decision usually occurs within 21 days, however if the defendant is out of custody then the State Attorney Office may take longer to make the filing decision. In these cases, the shorter time limit of 90 days will often apply even though the original charge was a felony.
Speedy Trial in a DUI Case with a Blood or Urine Test
Other common types of cases in which the right to a speedy trial comes into play is when the defendant is charged with DUI in a case involving a blood or urine test. If the police make an arrest and then obtain a blood or urine sample, it make take months for the test results to come back.
If the defendant does not waive the right to a speedy trial the prosecutor is often faced with very little time to prepare for trial when and if the results come back. In cases in which the driver is seriously injured, the law enforcement officer may wait to make the arrest until after the blood sample has been tested by the crime lab.
Those DUI cases involving a breath or urine test are also complicated by the fact that the State Attorney's Office must present the chain of custody witnesses (all individuals who handled the testing sample) and expert testimony to interpret the results. Given the complexity of these misdemeanor DUI cases, the defendant is often in a position to prepare quickly for the trial and refuse to waive speedy trial. We have seen cases in which the prosecutor became so concerned about the time limit that the prosecutor was willing to drop or reduce the charges to avoid a speedy trial.
In felony DUI cases involving death or serious bodily injury (or in a misdemeanor case when only the defendant is seriously injured) law enforcement will seek to obtain a blood sample after the crash but before any formal arrest is made. Then the State Attorney's Office will not file the charge until after the blood results come back (which can take 30 - 90 days).
It is not uncommon in these types of cases for a prosecutor in Florida to wait up to four months to formally file charges. Because the defendant was not arrested on the day that the crash occurred the speedy trial period may not begin to run until charges are filed.
Reasons to Waive the Right to a Speedy Trial under Florida Law
Requesting a speedy trial is not always in the defendant's best interest because often the defense needs additional time to be thoroughly prepared for pre-trial motions and the trial. In certain cases, however, it may be advantageous for the defendant to assert his right to a speedy trial under Florida law.
At the Sammis Law Firm, we have experience with asserting the speedy trial Florida statutory provisions to cause a discharge of criminal offenses when the State was unwilling or unable to proceed to trial in a timely manner. If you have pending charges in Hillsborough County, Pinellas County, Pasco County, Polk County, Manatee County or Sarasota County, contact an experienced Tampa criminal attorney to discuss your right to a speedy trial.
Time Periods: Speedy Trial Rights without a Demand for a Speedy Trial in Florida
Under the Sixth Amendment of the United States Constitution and Section 16 of Article I of the Florida Constitution, a person accused of a criminal offense is entitled to a "speedy and public trial."
In accordance with these constitutional mandates Florida Rule of Criminal Procedure Rule 3.191(a) provides that an individual arrested for a felony offense must be brought to trial within 175 days of the arrest and an individual arrested for a misdemeanor offense must be brought to trial within 90 days of an arrest.
Under Rule 3.191(p), the remedy for failing to bring the defendant to trial within the time period prescribed is a discharge of the offense charged with a ban on any further prosecution.
The 90 day speedy trial period for a misdemeanor or the 175 day speedy trial period for a felony begins with the defendant's initial arrest (or when the defendant is taken into custody on the charge), regardless of when the charges are ultimately filed.
What Happens When the Speedy Trial Period Runs Out - the Recapture Period
After the speedy trial period has run, the defendant can file a "notice of expiration of the speedy trial period" and serve the prosecutor with a copy of the pleading. Defense counsel should usually serve a copy directly on the prosecutor assigned to the case.
When the defendant files the "notice of expiration of the speedy trial period" it alerts the clerk's office and the prosecution of the need to bring the case to the attention of the court. The notice imposes a deadline upon the judge and the prosecutor to hold a speedy trial hearing within five (5) business days.
Speedy Trial Hearing on the Notice of Expiration
At the speedy trial hearing the court must schedule a trial to take place within the 10 day recapture period under Florida Rule of Criminal Procedure 3.191(p)(3). Florida law provides that the trial which must begin within ten (10) calendar days of the hearing on the notice unless one of the grounds listed in rule 3.191(p) applies.
One of the limited excuses for non-compliance with the 10 day recapture period is the unavailability of the defendant or his counsel for trial. In other words, the delay can not be caused by the defendant or his attorney. If none of the limited excuses for non-compliance exists, then the defense can file a "motion for discharge" which requires the court to discharge (or throw out) the criminal charge.
A defendant, by invoking the speedy trial rules, must have a "bona fide desire to obtain a trial sooner than otherwise might be provided, and a demand for a speedy trial shall be deemed a pleading by the accused that he is available for trial, has diligently investigated his case, and is prepared to go to trial in five days." § 3.191(c), Fla.Stat.
The effect of the speedy trial rule is that the defendant is enlisted as a timekeeper, first, to realize the expiration of 175 days and, then, through the filing of a motion for discharge, to notify the state of its inattention to docket control.
Charging Document or Information Can Not be Amended After the Speedy Trial Period Has Run
Another benefit of not waiving your right to a speedy trial is that the State may not be allowed to amend the charging document or information after the speedy trial period has run, even if a notice of expiration has not been filed by the defense. This is especially important in a case in which the prosecutor has charged a less serious offense (sometime inadvertently) and could figure out later that the criminal charge could be amended to a more serious offense.
If an amended information is filed after the speedy trial time period has expired and the defendant has not previously waived his or her right to speedy trial, then upon proper motion by the defendant, the new charges contained in the amended information must be dismissed if they arose from the same criminal episode as the charges contained in the original information. State v. Clifton, 905 So.2d 172, 178 (Florida 5th DCA 2005); Pezzo v. State, 903 So.2d 960, 961 (Florida 1st DCA 2005).
The Clifton court further states that, "Under these circumstances, it is not necessary to file a notice of expiration because the time limit has expired. All that is necessary is that the defendant file a Motion for Discharge directed to the new charges." Id.
Florida's Speed Trial Rights with a Demand for a Speedy Trial
Even before the time period for a speed trial without a demand runs but after an information is filed, a defendant can file a separate pleading called a "Demand for Speedy Trial" which must be served on the prosecuting attorney.
Under Florida Statute Rule 3.191(b) once the "Demand for Speedy Trial" is properly filed, the defendant shall have a right to trial within sixty (60) days. The same five (5) day time limit for the speedy trial hearing and 10 day recapture period explained above apply after a demand is filed.
Constitutional Right to a Speedy Trial
Even when the defendant waives his rights to a speedy trial under Florida Rule of Criminal Procedure Rule 3.191, the defendant may still have a right to have the charges discharged under his constitutional rights to a jury trial. The Supreme Court of the United States has listed the following four considerations in determining whether a delay caused by the prosecution caused a violation of an individual's right to a speedy trial:
- The length of the delay which is a triggering mechanism that can create a presumption of prejudice;
- Whether the reason for the delay was negligent, deliberate or justified;
- The defendant's assertion of his right and effort to protect his right to a speedy trial; and
- Whether prejudice to the defendant resulted from the delay.
See Barker v. Wingo, 407 U.S. 514, 530 (1972). The court must balance these four considerations against each other, and the presence of one factor is not dispositive.
Other Resources for Information on the Right to a Speedy Trial
History of Federal Constitutional Right to a Speedy Trial - Read more about the history fo the federal constitutional right to a speedy trial.
Speedy Trial Clause - Wikipedia article provides a general overview of the speedy trial clause. Article also discusses the practical application of the right to a speedy trial in each of the 50 states, including information on the waiver of speedy trial by a request for a continuance.
Title I of the Speedy Trial Act of 1974 - Summary of Title I of the Speedy Trial Act of 1974 from the official website of the United States Department of Justice. Read the summary in the DOJ Criminal Resource Manual which is cited as USAM 9-17.000.
The right to a speedy trial is an important protection provided to any person accused of a crime in Florida. At the Sammis Law Firm, P.A., we take that right seriously, and are ready to comply with the client's desire for a speedy trial in appropriate cases. We represent clients charged with criminal cases throughout central Florida including Tampa or Plant City in Hillsborough County, Bartow in Polk County, New Port Richey or Dade City in Pasco County, St. Petersburg or Clearwater in Pinellas County, Brooksville in Hernando County, Bushnell in Sumter County, Bradenton in Manatee County, or Sarasota or Venice in Sarasota County, Florida.